Ram Nath vs State of U.P.and Others

Rajiv Sharma, J.—Heard Sri Ramesh Pandey, learned counsel for the petitioners and Sri Sanjay Sarin, learned Standing Counsel.

By means of these writ petitions, writ petitioners have challenged the order dated 17.12.2008 passed by Chief Medical Officer, Shravasti, whereby petitioners'' services have been terminated.

Since common questions of facts and law are involved in these writ petitions, as such, they are being decided by a common order.

Sri Ramesh Pandey, learned counsel for the writ petitioners submits that pursuant to the orders of Director General, Medical and Health Services, Director (Administration) and Additional Director, Medical Health and Family Welfare, Faizabad/Devi Patan Region, the office of Chief Medical Officer, Shravasti issued advertisement dated 30.10.2006 for appointments of Class IV posts. The Additional Director, Medical, Health & Family Welfare, Devi Patan/Faizabad Mandal approved the Selection Committee, consisting of Chief Medical Officer, Shravasti, namely, Dr. Amrendra Kumar and six other members, constituted for the purpose of holding selection for Class IV Posts on 8.11.2006. In response to the advertisement dated 30.10.2006, the petitioners and other candidates appeared in selection. After due process of law and Rules, the Selection Committee made recommendations for appointment of writ petitioners. In pursuance thereof, the petitioners were appointed on Class IV posts on 15.11.2006 and they have joined their respective post on 16.11.2006.

Counsel for the petitioners submits that after the appointment of the petitioners, certain complaints in regard to selection/appointment on Class IV posts was made and as such, an inquiry was instituted by Director (Administration), who submitted his report on 9.4.2007 to the State Government, wherein it has been mentioned that there is no irregularities in selection proceedings.

Counsel for the petitioners submits that on 20.10.2008, on change of political regime, present State Government, by the order dated 20.10.2008, cancelled appointments made on Class IV posts in District Shravasti on the basis of inquiry report dated 9.4.2007. In pursuance thereof, Director General, Medical & Health Services, by the letter dated 16.12.2008, directed Chief Medical Officer, Shravasti to terminate the services of Class IV employees and as such, Chief Medical Officer, Shravasti, by the order dated 17.12.2008, terminated the services of the petitioners. Feeling aggrieved, these writ petitions have been filed inter alia on the grounds that the petitioners'' services were terminated in utter disregard of principles of natural justice.

Submissions of learned counsel for the petitioners submit that petitioners were neither afforded opportunity of hearing nor any notice was given. Further the State Government arbitrarily proceeded in the matter and issued direction for termination of services. He submits that the formation of opinion for termination of services of the petitioners has absolutely no rational connection with inquiry report dated 9.4.2007, which is the basis for terminating services insofar as inquiry report dated 9.4.2007 clearly reveals that no irregularities were made in selection/appointments.

In support of the aforesaid submissions, learned counsel for the petitioners have relied upon the judgments of the Apex Court rendered in Kumaon Mandal Vikas Nigam Limited v. Girja Shanker Pant, AIR 2001 SC 24, Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321, Basudeo Tiwari v. Sido Kanhu University and others, (1998) 8 SCC 194, Ramana Dayaram Shetty v. International Airport Authority of India and others, (1979) 3 SCC 489, S.L. Kapoor v. Jagmohan and others, (1980) 4 SCC 379 and Bhikhubhai Vithlabhai Patel and others v. State of Gujarat and another, (2008) 4 SCC 144.

On the other hand, Sri Sanjay Sarin, learned counsel for the opposite parties submits that the advertisement for appointment of class IV post was issued by an incompetent authority i.e. Dr. Amrendra Kumar who was not regular Chief Medical Officer of District Shravasti but he was given officiating charge of the post of Chief Medical Officer, Shravasti to carry out routine day to day functions of the post and as such, an officer in officiating capacity cannot make substantive appointments on the post for which he is not the appointing authority. Thus, very initiation of the entire recruitment precess was absolutely illegal and without jurisdiction.

Sri Sarin also submits that although the aforesaid officiating Chief Medical Officer, District Shravasti was not competent but even then, he constituted a Selection Committee consisting of six officers. He also submits that in the advertisement itself, the date for interview for all the candidates appearing against all the 41 posts was fixed for 14.11.2006. On 14.11.2006, the aforesaid Selection Committee started interviews at about 8.00 A.M. and various oral and written complaints with regards to the bungling in the aforesaid selection were lodged with the District Magistrate, Shravasti on whose directions SubDivisional Magistrate, Tehsil, Bhinga District Shravasti reached on the spot of interview and on his intervention, the interviews were stopped. He submits that by the time aforesaid interview process was stopped by the district authorities, the alleged illegal Selection Committee completed interviews only for 38 posts pertaining to 10 different disciplines, therefore, it is patently manifest that the entire selection process in pursuance of the advertisement dated 30.10.2006 could not be completed.

Sri Sarin further submits that the District Magistrate in view of various complaints lodged with him directed for magisterial enquiry in the alleged bungling in the selection and directed SubDivisional Magistrate, Bhinga, District Shravasti to conduct the said enquiry. He submits that on one hand, District Magistrate, Shravasti directed for enquiry into the matter but on the other hand, without even completing the entire interviews in pursuance of the advertisement dated 30.10.2006, the officiating Chief Medical Officer, Shravasti in most illegal manner declared the result of 38 posts of 10 different disciplines in the evening of 14.10.2006 itself and in most hasty manner on the next day i.e. on 15.10.2006 all the alleged selected candidates were issued appointment letters, which is clear terms shows that there was large scale bungling in the selection. He submits that the SubDivisional Magistrate, Bhinga after recording statements of various persons and also after recording the statement of Dr. Amrendra Kumar, officiating Chief Medical Officer, district Shravasti submitted its detailed report on 27.11.2006 in which various irregularities were found in the selection and recommendation was made to cancel the entire selection and initiate fresh selection process under regular Chief Medical Officer, in accordance with Rules.

Sri Sarin also submits that it is well settled through catena of judgments of the Hon''ble Supreme Court that where there are substantial irregularities in the selection which prevails the entire selection, then, such selection can be cancelled and there is no need to provide opportunity of hearing to each and every candidate before cancelling the said selection.

I have heard learned counsel for the parties and perused the records.

The reason for not accepting the assertions of the learned Standing Counsel that the impugned orders are perfectly justified and legally valid is that no notice was ever issued before passing the impugned orders. Standing Counsel has also failed to show that hearing was afforded to the petitioner before passing the impugned orders.

Submission of learned Standing Counsel that Dr. Amrendra Kumar, who was given the charge of officiating Chief Medical Officer of district Shravasti, was not competent but even then, he constituted a Selection Committee consisting of six officers for appointment of Class IV employee, does not find favour of the Court as Additional Director, Medical, Health & Family Welfare, Devi Patan/Faizabad Mandal approved the said Selection Committee and as such, Dr. Amrendra Kumar, Officiating Chief Medical Officer cannot be said to be at any fault and further if a person working as officiating capacity, he can discharge his duties as directed by the superior authorities and in issuing appointment orders though as officiating capacity of CMO, it cannot be said that the appointment order has not been issued by the competent authority insofar as the appointing authority of Class IV employees is the CMO concerned.

It is settled law that any order which entalls civil consequences must be in consonance with the principles of natural justice. In order words, if any person is put to any harm, he shall first be afforded adequate opportunity of showing cause.

Natural Justice is the essence of fair adjudication, deeply rooted in tradition and conscience to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice.

Besides, natural justice is an inseparable ingredient of fairness and reasonableness. It is even said that the principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary.

The Hon''ble Supreme Court in iota of cases has reiterated that a person who is put to any harm, he shall first be afforded adequate opportunity of showing cause. In D.K. Yadav v. J.M.A. Industries; (1993) 3 SCC 259, the Supreme Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Hon''ble Apex Court concluded as under;

�The procedure prescribed for ''depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful or oppressive.�

In National Building Construction Corporation v. S. Raghunathan, (1998) 7 SCC 66, it was observed by the Apex Court that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons.

For the reasons aforesaid, writ petitions are allowed and the order dated 17.12.2008 passed by Chief Medical Officer, Shravasti is hereby quashed. Opposite parties are directed to allow the petitioners to work on their respective post forthwith and pay them regularly in accordance with Rules. However, it will be open for the authorities to proceed, in accordance with law, if they so desire.

(Petitions allowed)