WRIT PETITION 51501 of 1999 on 9 December 1997

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

Present petition has been filed for quashing the order dated 01.11.1999, passed by respondent no.1, by which the appointment of the petitioner has been quashed.

2. Briefly stated, according to the petitioner on 09.12.1997, petitioner was appointed as a Peon in a Government Inter College Dwari, Pauri Garhwal (for short, “the college”). Pursuant to the appointment, the petitioner joined the college on 12.12.1997. He has been working regularly, but suddenly on 01.11.1999, by the impugned order the respondent no.1 quashed his appointment. According to the case, the appointment has been cancelled in violation of the principles of natural justice as no opportunity of hearing was given to the petitioner. It is also the case of the petitioner that the services of the petitioner were temporary in nature and such services can be terminated only in accordance with the provisions of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 (for short, “the Rules”).

3. On behalf of the respondent State, counter affidavit has also been filed. According to it, the appointment of the petitioner was against Rules and in defiance to the Government Orders, therefore, there were no necessity of compliance of any Rules.

4. Heard learned counsel for the parties and perused the record.

5. Learned Counsel for the petitioner would submit that petitioner had earlier also served in the same college for a period, but his services were earlier also discontinued by the authorities. The petitioner had challenged his discontinuance of service then, in a writ petition, which had already been dismissed. It is argued that subsequently again on 09.12.1997, the petitioner was offered appointment as a Peon in the college.

6. Learned counsel for the petitioner would submit that, in fact, in the appointment letter, reference to a stay order of the Hon’ble High Court of Allahabad has wrongly been made because there were no order of the High Court at the relevant time qua the petitioner. But, learned counsel for the petitioner would submit that, in fact, the petitioner has submitted various representations before his appointment on which, the then Commissioner had made endorsement and pursuant to it on 09.12.1997, the petitioner was given fresh appointment on a pay-scale. It is argued that the petitioner was a temporary Government servant and his services could not have been terminated without following the provisions of the Rules; without giving him any opportunity of hearing or without paying him one month salary or giving him one month’s notice, but nothing as such was done in the case of the petitioner, therefore, it is argued that the impugned order is not good in the eye of law. It deserves to be set aside.

7. On behalf of the State, learned counsel would submit that the appointment order does not carry any weight because when the appointments were banned, the concerned District Inspector of School (for short, “DIOS”) made the appointment in defiance of the Government Orders, for which, the DIOS was suspended and proceeded against departmentally and subsequently, he was superannuated. It is argued that the appointment itself is illegal. There was no advertisement; there was no requisition from the Employment exchange; no procedure was followed, therefore, there is no question of following any Rules while quashing such an appointment.

8. If a person is appointed in a public employment, it is always done in accordance with certain Rules. There are different provisions of such engagements given under Service Jurisprudence may be ad-hoc, may be temporary, may be permanent against substantive posts. In the instant case, what is being argued is that the petitioner was appointed on pay scale, therefore, he was in temporary employment and his services could not have been terminated without following the Rules.

9. The copy of the appointment letter dated 09.12.1997 is Annexure No.6 to the writ petition. Its opening line reflects as if this appointment was made pursuant to some stay order of the Hon’ble High Court as well as some letters of the Deputy Director, Education, Pauri Garhwal. There is no direction of Deputy Director, Education on record commanding the DIOS to make an appointment. Since there is no letter of the Deputy Director, Education on record, the Court is not in a position to verify as to whether it had directed the DIOS to make appointment and if so, under what circumstances and under what authority?

10. In so far as, mentioning the factum of any stay order of the Hon’ble High Court in the appointment letter is concerned, the petitioner in para 8 of the petition has clarified that there was no stay of any kind in the matters of the petitioner. The appointment letter of the petitioner records that appointment is made in compliance of a stay order of the Hon’ble High Court and fact remains that there is no stay order. So basis of appointment is false. In fact, it is a false document, which may also be termed as a forged document because despite there being no stay order of the Hon’ble High Court, the appointment was offered mentioning therein that such appointment is in compliance of stay order of the High Court. Admittedly, there is no other order of any authority on the record which may justify the initial appointment dated 09.12.1997.

11. The impugned order by which the appointment of the petitioner was cancelled records that the action of the then DIOS, Ramesh Chandra Premi, were enquired and it was found that the appointment was made in defiance to the Government Orders, prescribed procedure was not followed; advertisement was not published; employment exchange was not informed or even the names were not called; no call letters were issued. What is being told is that the then DIOS was departmentally proceeded. He was suspended for such illegal actions committed by him.

12. Without there being any stay order of any Hon’ble High Court, the appointment letter dated 09.12.1997 has been issued to the petitioner at the strength of some stay order of the High Court. As stated, the appointment letter on this basis becomes a false document which may be termed as forged and by the impugned order such appointment has been quashed on other grounds as well. This Court does not find any infirmity in the impugned order.

13. It is also argued that the petitioner was not given any opportunity of hearing before cancellation of the appointment. This Court wanted to know from learned counsel for the petitioner as to how the appointment of the petitioner is valid? He has not reply. He could not show any order of the Deputy Director, Education or any stay order of the High Court, on the strength of which, the appointment order was passed. In such a case, the observation of the principles of natural justice is a ‘mere formality’. Petitioner has not been prejudiced due to non affording him of any opportunity of hearing. Neither any statute provide that in such case the petitioner be given any opportunity of hearing, nor the petitioner could show that he is prejudiced by non affording of opportunity of hearing. The petitioner could not explain that is initial appointment order valid. In fact, as observed, initial appointment order is a false document. In the case of M.C. Mehta Vs.

Union of India and others, (1999) 6 SCC 237, Hon’ble Supreme Court observed as hereunder:- “17. ………………………………………………………………………………………………………………………… The above case is a clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of the principles of natural justice or is otherwise not in accordance with law.”

14. In the case of State of UP vs. Sudhir Kumar Singh and others, 2020 SCC Online SC 847, the Hon’ble Supreme Court further discussed the concept of mere formality as hereunder:-

“39. An analysis of the aforesaid judgments thus reveals: (1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused. (1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused. (2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest. law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest. (3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice. the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.

(4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. (5) The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.”

15. In view of the settled law, this Court is of the view that in case, the impugned judgment is set aside due to non observance of the principles of natural justice, it may result in revival of the appointment order dated 09.12.1997, which is patently illegal, which is a false document. Therefore, merely because the petitioner has not been afforded an opportunity of hearing before the impugned order was passed, is also not a ground to make any interference in the impugned order. No interference is warranted in the order and the petition is liable to be dismissed.

16. Learned counsel for the petitioner made another attempt that since petitioner has been working in the college for a long and the department is also need of such a person, the petitioner may be allowed to continue in the manner, he is continuing till now. The Court does not want to make any observation on it, these are issues relating to public employment. There may be many persons who would be waiting for any advertisement so that they may also offer their candidature.

17. The writ petition is dismissed.

Sanjay

(Ravindra Maithani, J.)

09.08.2021