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Angan Prasad v. State Of U.P. & Others - SPECIAL APPEAL No. 1303 of 2005 [2005] RD-AH 5258 (8 November 2005)


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Court No.32

Special Appeal No.1303 of 2005

Angan Prasad vs. State of U.P. & others.

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

This appeal, under the Rules of the Court, is preferred against the order of the Hon'ble Single Judge dated 29.9.2005 in writ petition no.37486 of 2004.

Heard learned counsel for the appellant and Shri B.K. Mishra, learned counsel for the respondents.

Briefly stated, the controversy involved is in respect of the number of post and also as to whether the post in question was to be filled up by direct recruitment or by promotion.  Hon'ble Single Judge, having found that the controversy is of factual aspect, directed the District Inspector of Schools to determine the dispute in the light of the observation made in the order after ascertaining exact number of posts available in class III in the institution and after affording opportunity of hearing to the petitioner as well as the respondent, decide the issue in accordance with law.

Learned counsel for the appellant firstly submits that the vacancy, liable to be filled in by promotion, could not have been filled in by direct recruitment; secondly, Sri Ram Sakul Singh, respondent no.5 was illegally appointed by direct recruitment and hence, cannot claim any right to hold the post; and thirdly, that before denying promotion to the appellant, opportunity of hearing ought to have been afforded to him.

We have considered the aforesaid submissions.

There cannot be any dispute to the legal position that a vacancy if, under the law, is liable to be filled in by particular source of recruitment it cannot be filled in from a source of recruitment other than one for which it is meant; for example, if the vacancy is to be filled in by promotion it cannot be filled in by direct recruitment and vice versa, unless the rules so permit.  However, the fallacy lies in the contention of the petitioner that he has proceeded on the basis of assumption that the vacancy in the present case was to be filled in only by promotion and not by direct recruitment.  The Hon'ble Single Judge has noted that the existing number of vacancies/posts of class III could not be ascertained due to lack of necessary facts and material supplied by the parties and, therefore, the issue, ''as to what is the total number of sanctioned strength', is required to be examined by the authorities and only thereafter the issue could be decided as to whether the vacancy in question was to be filled in by direct recruitment or by promotion.

Further contention of the learned counsel for the petitioner that no notice was required to be given to respondent no.5, since he was illegally appointed, also cannot be accepted, in the facts and circumstances of the present case.  It was open to respondent no.5 to demonstrate before the authorities that the vacancy, upon which he has been appointed, was liable to be filled in by direct recruitment and there was no illegality in his appointment.  It is not a case where the illegality in the appointment of a person is writ large from the facts, which cannot be explained.  In the case of Basudeo Tiwary vs. Sido Kanhu University and others, 1998 (8) SCC 194 the Hon'ble Apex Court considered a similar contention where the University has power, under Section 35(3) of the Act, to terminate a person, without notice, where an appointment or termination is contrary to the provisions of the Act and the Rules etc. or in any irregular or authorised manner and yet it held in paras 9 and 12 as under: -

"9. .........It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness.  In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are the components of fair treatment.  The conferment of absolute power to terminate the services of an employee I an antithesis to fair, just and reasonable treatment.  This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corporation vs. D.T.C. Mazdoor Congress, AIR 1991 SC 101.

12. The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statute, 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 the 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 regulations, etc., a finding has to be recorded and unless such a finding and such a finding is recorded, the termination cannot be made, but to arrive at a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc.  If in a given case such exercise such exercise is absent, the condition precedent stands unfulfilled.  To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry, the person whose appointment is under enquiry will have to be issued a notice.  If notice is not given to him, then it is like playing Hamlet without the Prince of 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 case. 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, statute, rule 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."

Similar view was expressed by the Hon'ble Apex Court earlier also in the case of Sharawan Kumar Jha and others vs. State of Bihar and others, AIR 1991 SC 309.

Therefore, the contention that respondent no.5 was not entitled for any opportunity is liable to be rejected.

Moreover, in the present case, admittedly, respondent no.5 is continuing on the post since 1983 and, therefore, the Hon'ble Single Judge, in our view, has rightly disposed of the writ petition with the direction to the District Inspector of Schools to determine the exact number of vacancies and till then to allow respondent no.5 to continue on the post keeping in view the fact that he has already been working for the last 22 years.

In the aforesaid circumstances, we do not find any error, having been committed by the Hon'ble Single Judge in the impugned judgment, requiring interference in this appeal.  The special appeal, therefore, is without merit and is accordingly dismissed.  No order as to costs.




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