Samar Bahadur Yadav vs Regional Higher Education Officer,Varanasi

S.H.A. Raza J.

This is settled view of Hon''ble Supreme Court as well as this Court that if an authority passes an order of appointment and which order has reached to the appointee, who in pursuance of the appointment order has joined the post, then a right is vested to him even if the appointment is irregular or illegal and it can be set at naught after giving an opportunity to showcause.

In the present case, the petitioner were appointed as Lab Assistants on 31796 on Probation for one year and were confirmed on 1891 but on 25997, the Regional Higher Education Officer, Varanasi cancelled the appointment orders mainly on the ground that neither the Directorate of the Higher Education nor the State Government had sanctioned the posts of Lab Assistants and on the basis of fictitious order alleged to be issued by the Directorate ,five lab assistants were appointed, hence the appointment were cancelled.

Since the decision of Hon''ble Supreme Court in A.K. Kraipak and others v. Union of India and others, [AIR 1970 Supreme Court 150], it has been consistent view that if there is a lis in the order, meaning thereby that if the right of a person has been adversely affected by an administrative order, then such order would be bad until and unless that person has been given an opportunity to showcause against such action} Karipak''s (supra) was affirmed in Manefca Gandhi v. Union of India,. [AIR 1978 SC 597]. Thereafter, catena of cases including Basudeo Tiwary v. Sido Kanhu University and others, [1998 (8) SCC 194], in which Hon''ble Supreme Court relying upon the decisions in Delhi Transport Corporation v. D.T.C. Mazdoor Congress, (1991 Supp (1) SCC 600], Mohinder Singh Gill v. Chief Election Commissioner, |(1978) SCC 405]; and S.L. Kapoorv.Jagtnohati, |AIR 1981 SC 136], observed that the requirement of principles of Audi Alterem Partem which flow from Article 14 is ui ensure that the State action should be just, fair and reasonable and the procedural requirements of natural justice has to be implied into many situations even though the Statute may be silent on that aspect. In order to keep such wide powers within bounds of reasonableness, the requirement of Audi Alterem Partem should be read into the statutory Provisions, which provided for termination of services at any time without notice, Whenever an order adversely affects a person, the principle of Audi Alterem Partem should be followed. The doctrine of reading the principle of natural justice even if not provided in Statute or the Order, for the first time was introduced in Qlga Tellis v. Bombay Municipal Corporation, [1985 (3) SCC 545], which was reiterated in C.B. Gautam v. Commissioner Income Tax, (1991) 1 SCC 72. This principle was evolved by Hon''ble Supreme Court to protect those Statutes which would have been otherwise declared ultra vires by the Court if the principles of natural justice would have not been read into the Statute. The principle of Audi Alterem Partem is embedded in Article 14 of the Constitution which govern the entire realm of the State action. In the words of Hon''ble Bhagawati, J, it is touch stone or foundation of the Constitution, itself.

In the present case, the petitioners were not only appointed but they joined the posts and after the end of their probationary period, they were confirmed on the posts. Later on, Higher Education Commission found that the posts upon which the petitioners were appointed, were not sanctioned and thereafter, the appointment orders were cancelled after a lapse of more than one year.

Two other person namely Chandra Marii Tiwarj and Ram Raj Pal, who were similarly appointed in 1984, have sought for their impleadment in the present writ petition. Learned counsel for the applicant; who has preferred this application for. impleadment, has made categorical statement before this Court that the averments made in the application should be treated as their counteraffidavits in the said writ petition, In view of the aforesaid reason, I allow the application.

Hon''ble Supreme Court in Sharawan Kumar.ma and others v. State of Bihar and others, [AIR 1991 SC 309], in the similar circumstances, directed the respondents to issue show cause notice and thereafter, to hold departmental enquiry and pass appropriate orders.

No doubt the authority which has been vested with the power to appointment has also been vested with the power to cancel the appointment but it should be done in accordance with the established procedure. In the present case without giving the opportunity to showcause to the petitioners, their appointment were cancelled. Hence, 1 am of the opinion that the order does not appear to be fair, just and reasonable and in the absence of justness, fairness and reasonableness, the order would amount to arbitrary action.

In view of the aforesaid reasons, the impugned order contained in Annexure8 to the writ petition deserves to be quashed .

In view of what have been indicated hereinabove, writ petition succeeds and is allowed. A writ of certiorari quashing the order dated passed by Regional Higher Education Officer, Varanasi is issued. However, it is provided that it will be open for the respondents to pass appropriate orders in accordance with the procedure mentioned in the foregoing paragraphs.