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Judgment
Counsels heard.
Petitions are admitted.
With the consent of teamed counsel for the parties, these petitions are taken up for final disposal.
This order shall dispose of following writ petitions:
(I).SWP No. 972 of 1997 .
(II) .OWP No. 652 of 1997
(III).OWP No. 563 Of 1997
(IV).OWP No. 592 of 1998
(V).SWP No. 971 of 1997
(VI) . OWP No. 508 of 1997
(VII). OWP No. 562 of 1997.
(VIII). OWP No. 711 of 1997
Facts have been taken from writ petition No. 972 of 1997.
For the utilisation of the wasteland of this country, a National Waste Land Development Board came to be constituted. Among other things, this
Board was to take care of acute shortage of drinking water and others matters connected therewith. This programme was designated as
Watershed Development Programme. Reference to this has been made in para 26 of the Guidelines prepared by the Ministry of Rural
Development Government of India for Watershed Development. With a view to implement the project, Watershed Development Teams were to
be brought into existence. This is so provided in Chapter 4 of the Guidelines referred to above. Paragraph 59 deals with appointment of these
teams.
The dispute in the present petitions is visavis the appointment of these terms and later bringing an end to their tenure. At this state, it would be
apt to notice paragraph 59. This reads as under:
Appointment of WDTs: ""On receipt of approval of its nomination, the PIA shall take immediate steps for appointment of the Project Leader
and other members of the Watershed Development Team with the approval of the ZP/ DRDA. The appointment of the WDT must be completed
within a period of two months from the date of nomination of PIA, failing which the ZP/DRDA shall have the right to cancel the nomination and
attach the villages to some other PIA. All the members of the WDT must be in position within a maximum of three months from the date of
nomination of the PIA.
The further facts are that an advertisement was issued in the Daily Kashmir Times of 3rd of May 1995. Applications were invited for
engagement of Watershed Development Teams in 14 blocks of Doda District. The terms and conditions, on which the members of the team were
to be appointed, have been indicated in the advertisement. The five conditions so enumerated are being reproduced below:""TERMS AND
CONDITIONS:
Qualification: Professional degree in discipline Plant Science, Animal Science, Civil/Agricultural Engineering and Social
Science/Botany/Sociology, those who have a practical field experience in the Rural areas particularly the retired candidates would be given
preference and even the required qualification shall be relaxed in such cases on the basis of long relevant experience in the area of Land and Water
Management, Engineering, Hydrology, Agri, Horti, Forestry, Village Industries.
This is not a permanent appointment but on consolidated emoluments to the tune of about 3000/ per month with other incidental charges for a
period of 4 years.
The local candidates with requisite qualification will be considered and candidates hailing from a particular block of the district will be engaged
within that particular block of the district will be engaged within that particular block jurisdiction
The candidate will have to undergo an agreement with the employer to the effect that he will serve completely for the 4 years project and will not
leave the same before its completion, incase of default he shall have to refund the emoluments drawn till that date.
No gratuity/bonus etc. will be paid to the candidate after the completion of 4 years tenure.
The further fact is that the petitioners in this petition came to be appointed as members of the team. An agreement was entered into between the
petitioners and the Project Officer. The terms and the conditions on which the members of the team were to be appointed, have been enumerated
in Annexure""4"". This is dated 1781995. The team members were to be paid a sum of Rs. 3.000/. The appointment was made w.e.f. 1781995.
This tenure was for a period of 4 years. Lateron, the tenure of these Water Shed Committee Teams and the members thereof was brought to an
end. An order was passed by the District Development Commissioner, Doda. This order was passed in his capacity as Chairman of Drought
Prone Area Programme and District Rural Development Agency. This order came to be passed on 461997. The Watershed Committees were
superseded and their functions were taken over the chairman of the two Agencies referred to above. It is this order which is subject matter of
challenge in these petitions.
The learned counsel forthe petitioners submit that the appointments were made by the Competent Project Officer after inviting applications
from the public. The approval of the Chairman of the Project was also sought. It is stated that the member of the team were being paid their
emoluments and these emoluments were sanctioned by the Competent Authority, which authority lateron brought an end to the tenure of the teams.
It is on these premises it is argued that the order passed on 461997 is bad. It is also urged that a perusal of the order dated 461997 indicates that
the Chairman of the Project has made certain observations which would amount to imposing a stigma on the members. Particular reference has
been made to paragraph 6,7,8, and 9 of the order. It is stated that, if these paragraphs are perused, then anybody who reads the orderwould form
an impression that the members had misutilized the funds and were not competent persons to discharge the duties entrusted to them. For facility of
reference, these paragraphs may also be noticed. These read as under
Whereas, Rs. 30.00 lacs were advanced to the 2 Watershed Development Teams of Bhaderwah/Thathri phase 1st for execution of the works
but the same have not been properly utilised as per the provision of the new guidelines issued by the Government of India.
Whereas, a number of complaints have been received regarding misutilization of the funds provided and malfunctioning of the Watershed
Development Teams/Committee unauthorisedly framed by the then Project Officer, DPAP, Doda.
Whereas, the Project leader Watershed Development Teams Thathri pahse 1st himself vide his No. C/4 dated 2111996 has accepted the
allegations for misutilization of the funds provided for Watershed Development Programme.
9: Whereas, the Watershed Development programme in the target areas has suffered serious set back due to non functioning of the Teams, lack of
experience, technical qualification and nonresponsive attitude of the Team members unauthorisedly nominated by the then Project Officer, DPAP,
Doda.
The respondents have filed their objections.
It is stated that the Watershed Committees were constituted without there being any prior approval of the Chairman. The eligibility criteria as
indicated in para 35 of the guidelines was not taken note of. It is the case of the respondent that certain qualifications were laid down and these
qualifications were given a complete go bye by the Project Officer, who appointed the team members. It is stated that a member of the team must
have knowledge in the discipline of Plant Sciences, Animal Sciences, Civil/Agricultural Engineering and Social Sciences. It is further stated that
minimum qualifications, which were required to be there, was a professional degree in Agricultural Engineering or Post Graduate in Botany,
Economics, Sociology and Social Work. According to the learned counsel appearing for the state, the members of the teams lacked these
qualifications. It was on account of these factors, the tenure of the teams was curtailed. To sum up, the stand of the state is:
(i). That the members of teamswere not qualified.
(ii). That the appointment was mad for extraneous considerations.
(iii). That the guidelines indicated in pargraphs 35 and 59 of the guidelines was not followed.
It is broadly on the above premise that a prayer has been made that interference should not be made on the writ side.
Visavis the qualification, the learned counsel for the petitioners submits that there is a power of relaxation. According to the learned counsel,
the qualifications have been relaxed. He submits that even if some qualifications were not there with the members, that should be deemed to have
there was no concealment on the part of the petitioners. They never misrepresented any facts. The Project Officer was aware of their
qualifications. He having made the appointments, and these appointments having been deemed to be approved by the Chairman, cannot be
brought to an end. After relying upon the deeming fiction, the petitioners counsel submits that the fact that the salaries of the team members were
being released by the Chairman of the Project, is enough to conclude that the requisite approval was there. Learned counsel also submits that in
fact approval was there on the file, and it was only after approval, the appointment orders were issued.
The learned counsel for the State has placed reliance on a judgement of the Supreme Court of India in the case reported as State of Ashwani
Kumar Vs. State of Bihar: AIR 1997 SC Supplement 1628. In the above case, some appointments were proposed to be made. The Selection
Committee was to recruit about two thousand ClassIll and Class IV employees. The recruitment authority adopted a method of pick and choose.
The established procedure and guidelines in the matter of appointment were not following. In these circumstances, claim for regularisation of
services was declined. The reason given was that an employee, whose intial entry is illegal and in total disregard of Rules, has no right to claim
regularisation.
I am of the opinion that in the present case, the situation is different. The petitioners came to be appointed as members of the team. They had
fixed tenure. This tenure was on four years. This was curtailed by passing the order on 4.6.1997. Had the order been simple in nature, things might
have been different. However, in the present case, serious allegations have been made. Those are apparent from reading of paragraphs 6,7,8, and
9 reproduced above. In these circumstances, the authorities should have complied with bare minimums of principles of natural justice. In this
regard, it would be apt to refer to a decision given by the Supreme Court reported as S.L. Kapoor Vs. Jagmohan AIR 1981 SC136. In the above
case, a Municipal Council constituted under the Punjab Municipal Act of 1911 was superseded. The tenure of the council was brought to an end.
There was no provision in the Act which required observance of principle of audi alteram pattern. Notwithstanding the nonexistence of any
provision for affording opportunity of hearing. The Supreme Court of India observed that opportunity should have been granted to the person
whose term was sought to be curtailed. The relevant observations made in paragraph16 are relevant, and are being noticed. They are as
under""Thus on a consideration of the entire material placed before us we do not have any doubt that the New Delhi Municipal Committee was
never put on notice of any action proposed to be taken under Sec. 238 of the Punjab Municipal Act and no opportunity was given to the
Municipal Committee to explain any fact or circumstances on the basis (of which) that action was proposed. If there was any correspondence
between the New Delhi Municpal Committee and any other authority about the subject matter or any of the allegations, if information was given
and gathered it was for entirely different purposes. In our view, the requirement of natural justice are met only if opportunity to represent is given in
view of proposed action. The demands of natural justice are not met even if the very person proceeded against had furnished the information on
which the action is based, if it is furnished in a casual way or for some other purpose. We do not suggest that the opportunity need be a 'double
opportunity1 that is one opportunity of the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person
proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is
made know the requirements are met. We disagree with the finding of the High Court that the Committee had the opportunity to meet the
aliegations contained in the order of superession.
The above decision of the Supreme Court was followed by the Punjab and Haryana High Court in the case reported as Jathedar Jagdev Singh
Vs. State, AIR 1982 Punjab and haryana 16. The relevant para of the judgement is21, which is reproduced below:""It appears to me that when the
learned single Judge considered the matter there was undoubtedly much to be said for the view he had taken and we would have been loth to
dislodge it, but for the fact that the binding precedent in S.L. Kapoor's case (AIR 1981 SC 136) has materially altered the situation. In our view
the aforequoted observations from the said case virtually conclude the matter in favour of the appellants and with the greatest respect we have to
hold that the finding of the learned single Judge that the principle of natural justice are inferentially excluded from S. 3(8) of the Act is not now
sustainable and has consequently to be reversed.
It was held that even though there is no provision in the relevant Statutes for affording opportunity of hearing, but as the order by which the
tenure was being curtailed is likely affect the civil rights of the persons who were members of the Committee, they should have been afforded an
opportunity of hearing.
In the present case, serious allegations have been made. In these circumstances, an opportunity of hearing should have been given to the
petitioenrs to meet the allegations. There was violation fo principles of natural justice. The order issued on 4.6.1997, thus cannot be sustained. The
same is quashed. The respondent would be at liberty to pass fresh orders after afforing opportunity of hearing to the petitioners. The petitioners
would appear before the Chairman/District Development Commissioner, Doda, on 1631998. The petitioners be afforded opportunity of hearing.
Thereafter fresh oraer(s) in accordance with law be passed. The petitioners would be at liberty to bring to the notice of the aforementioned officer
that they have acutally worked, and therefore, they are entitled to their emoluments for the period they have worked. If the petitioners have actually
worked, the respondent authorities would release their emoluments also.
It be seen that in all cases enumerated in the beginning of this order, the order is challenged in the same terms. As a matter of fact, a
cyclostyled order has been passed. Therefore, whatever has been said in Mohammad Aslam Wanis' case would apply to other cases also. The
petitioners would appear before the Officer named above on the same date i.e. 16.3.1998. It is made clear that a fresh show cause notices are not
required to be issed. This is because by now the petitioners know the case they have to meet. Disposed of the manner indicated above. There
would be no order as to costs.