Satendra Kumar Singh vs State of U.P. and Others

Sudhir Agarwal, J.—It appears that certain appointments were made on Class III and IV posts but on inquiry it was found that appointments were not legal. In the circumstances, the aforesaid appointments were cancelled by order dated 26.3.2009 passed by the Assistant Director (Higher Education) U.P., Allahabad and in compliance thereof payment of salary of these appointees was stopped by order dated 2.6.2010. These two orders were passed in respect to Manoj Kumar Yadav (Clerk), Bharat Singh (Clerk), Sri Satyendra Kumar Singh (Library Clerk), Sri Ambarish Kumar Gond (Lab Assistant) and Sri Ravindra (Lab Assistant). The aforesaid persons have approached this Court by filing writ petitions as under:

(a) 40173/2010, Manoj Kumar Yadav v. State of U.P. and others;

(b) 47780/2010, Ambarish Kumar Gond and Ravindra v. State of U.P. and others;

(c) 54687/2010, Satendra Kumar Singh v. State of U.P. and others (the present writ petition).

The writ petition No. 40173/2010 came up before Hon''ble Arun Tandon, J. and following order was passed on 26.7.2010:

(a) The report of the Regional (Higher Education) Officer on the basis of the impugned order may be supplied to the petitioner today in the Court.

(b) Petitioner is granted liberty to file fresh representation questioning the finding records in the report before the Secretary, Higher Education, U.P., Lucknow within two weeks from today alongwith certified copy of this order.

(c) The Secretary on receipt of the representation shall call for the original records pertaining to the appointment of the petitioner and after affording opportunity to Committee of Management and the petitioner pass appropriate order within four weeks thereafter.

(d) Payment of salary to the petitioner shall abide by the orders to the Secretary as indicated above.

Thereafter writ petition No. 47780 of 2010, Ambarish Kumar Gond and another v. State of U.P. and others came up before Hon''ble V.K. Shukla, J. and following the above order passed In writ petition of Manoj Kumar Yadav, on 11.8.2010 the Court passed the following order:

In reference of this very selection, another incumbent Manoj Kumar Yadav has approached this Court by means of Civil Misc. Writ Petition No. 40173 of 2010 and this Court had asked the Secretary, Higher Education, U.P., Lucknow to examine the legality of the appointment of the petitioner of the aforesaid writ petition in time bound manner at the first Instance alongwith the same certain other direction has been issued.

In the present case, counter-affidavit has been called for, as such in addition of aforesaid order it is hereby ordered that Secretary, Higher Education, U.P., Lucknow shall also examine the legality of the appointment of petitioner Nos. 1 and 2 simultaneously and at the point of time when counter-affidavit Is filed copy of the report be also appended to the same.

This writ petition also came up before Hon''ble V.K. Shukla, J. and similar order as aforesaid has been passed.

Thereafter, the matter was examined by Secretary, Higher Education, who passed a detailed order on 21.2.2012, a copy whereof has been placed before me by Sri R.N. Yadav. advocate appearing for respondent No. 1 wherein Secretary has recorded a finding of fact that all the aforesaid appointments including appointment of Satendra Kumar Singh, the present petitioner, were not validly made and order cancelling their appointments has been passed by him.

Learned counsel for the petitioner placed reliance on the decision of Tasneem Fatma (Smt.) v. State of U.P. and others, (2009) 1 UPLBEC 321.

I do not find that the aforesaid judgment have any application to the facts of the present case. In the said case, order of termination was passed without holding any inquiry and, hence, the same was quashed. In the present case when the appointment itself is illegal, the question of termination after holding departmental inquiry does not arise, inasmuch as the question of quashing of termination on account of alleged misconduct of the petitioner also does not arise. Since the very appointment of the petitioner was invalid or illegal and, hence, the termination of the petitioner cannot be quashed.

It is no doubt true, once a person has been confirmed or regularized, revoking the said order visits civil consequences to the person concerned and, therefore, principles of natural Justice ought to have been observed but where only one conclusion is possible and it is evident from record that very appointment of incumbent concerned was illegal, this Court, while exercising power under Article 226 of the Constitution, is not bound to set aside such an order since observance of principles of natural justice is not an empty formality. Where only one conclusion is possible, this Court can decline to interfere in exercise of power under Article 226 of the Constitution.

In Karnataka State Road Transport Corporation and Another Vs. S.G. Kotturappa and Another, , the Apex Court held:

The question as to what extent, principles of natural Justice are required to be compiled with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied In vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criterias required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with...

In Punjab National Bank and Others Vs. Manjeet Singh and Another, , the Apex Court said:

The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principles of natural justice.

(Emphasis added)

This Court also In Writ Petition No. 38893 of 2008, Brijendra Singh v. State of U.P. and others, decided on 18.5.2011 has taken somewhat similar view as under:

... it is well-settled that if only one conclusion is possible, the Court would not interfere in the impugned order.....

In P.D. Agrawal Vs. State Bank of India and Others, , it has been observed by Apex Court:

The principles of natural Justice cannot be put in a straight Jacket formula. It must be seen in circumstantial flexibility. It has separate facets.

This Court also in Writ Petition No. 31995 of 2000, Ganesh Singh v. District Magistrate and others, decided on 29.4.2011 has held as under:

The principles of natural justice cannot be kept in a straight Jacket formula. They apply in the facts and circumstances of each and every case. If the appointment of petitioner would have been made in accordance with law or at least some prima facie material would have to be placed to show what has been stated by respondents is not ex facie correct, then the matter may have required some further investigation. In the case in hand no such thing has been placed on record by petitioner or even pleadings to show that procedure prescribed under 1974 Rules was observed and thereafter petitioner was appointed. The appointment, therefore, is ex facie illegal and in the teeth of the Rules.

In the circumstances, this Court under Article 226 of the Constitution do not find it a fit case warranting interference. The writ petition, therefore, lacks merit and is dismissed.

Here it is not the case of termination of service of the petitioner but very appointment of the petitioner, being contrary to rules, has been cancelled. This Court has already differentiated and expressed the view when the very selection/appointment of incumbent is found to be nullity. cancellation thereof does not amount to dismissal or removal of service. In Civil Misc. Writ Petition No. 51300 of 2007. Devendra Kumar v. State of U.P. and others, decided on 2.11.2010 : the Court said:

Here this is not a case of dismissal. It is a case of cancellation of selection and appointment on account of false information furnished by petitioner before his appointment by filing an affidavit which contained wrong information and therefore, cancellation of selection and appointment...has been made.

Moreover, after the order passed by the Court on 11.8.2010 in the present petition, the Secretary, Higher Education has examined the entire matter and has passed a detailed order. The counsel for the petitioner has not opposed the fact.

In the circumstances I do not find it a fit case warranting for interference. The petition is accordingly dismissed.