JUDGMENT N.K. Mitra, C.J.
1. Special Appeal No. 253 of 1998, Atul Kumar Nigam v. State of U. P. and others, is directed against the judgment and order dated 27.2.1998 passed in Civil Misc. Writ Petition NO. 17883 of 1991 In terms of judgment and order of even date rendered in Civil Misc. Writ Petition No. 17885 of 1991, Sanjay Gupta and others v. State of U. P. and others, which gives rise to the Special Appeal No. 254 of 1998, Sanjay Gupta and others v. State of U. P. and others. For the sake of convenience, both the Special Appeals are being disposed of by a common Judgment.
2. The appellants were appointed Registration Clerks on the basis of recommendation made by a duly constituted selection committee in February, 1991. By means of identically worded order dated 15.6.1991, their services were terminated by the I.G. (Registration) without assigning any reason whatsoever and advertisement was issued for fresh appointments. The orders by which the services of the appellants were terminated as also the advertisement were challenged in the writ petitions giving rise to these appeals. The petitions were wrongly tagged with Civil Misc. Writ Petition No. 30582 of 1991, Hussain Ahmad v. State of U.P. and a bunch of other writ petitions filed by dally rated Registration Clerks and were dismissed for the reasons given in the Writ Petition No. 30582 of 1991, (Hussain Ahmad v. State of U. P.). Atul Kumar Nigam. the appellant of Special Appeal No. 253 of 1996 filed a Special Leave Petition (Civil) in the Hon'ble Supreme Court. The Hon'ble Supreme Court by its judgment and order dated 27.9.1995 passed in Civil Appeal No. 9135 of 1995, Atul Kumar Nigam LJ. State of U.P. and others, set aside the judgment and order of the High Court dated February 8, 1995 in so far as dismissal of Writ Petition No. 17883 of 1991. Similarly petition of Sanjay Gupta and others, appellants of Special Appeal No. 254 of 1998 was also dismissed along with writ petitions filed by the daily rated Registration Clerks. The order of dismissal of the writ petition came to be set aside by the Hon'ble Supreme Court vide judgment rendered in Civil Appeal No. 9136 of 1995. Sanjay Gupta and others v.
State of U. P. and others. The reasons given in the judgment are identical to those given in the Judgment of the Apex Court in Civil Appeal No. 9135 of 1995, Atul Kumar Ntgam v. State of U. P. and others. The relevant portion of the judgment of the Apex Court dated 27.9.1995. Atul Kumar Ntgam v. State of U. P. and others, is quoted below :
"It has been urged on behalf of the appellant that his case differs from other cases dealt with by the High Court inasmuch as he had been selected for regular appointment by a duly constituted Selection Committee in accordance with the rules and the High Court has not considered this aspect of the matter. In the counter-affidavit that has been filed on behalf of the respondents before this Court, it has not been disputed that the Selection Committee was duly constituted by the District Registrar, District Jhansi on February 24, 1991 but it is asserted that while doing so the District Registrar, District Jhansi did not comply with the mandatory provisions of Rule 22 of the Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1975. which had been replaced by the Subordinate Officers Ministerial Staff (Direct Recruitment) Rules, 1985 as amended up-to-date and thus there was defect in the procedure of the said selection and the selection was void. This question has not been gone into by the High Court while dismissing the writ petition of the appellant. It is a question which should have been considered by the High Court before dismissing the writ petition of the appellant.
The appeal is. therefore, allowed the Judgment and order of the High Court dated February 8, 1995 in so far as it relates to dismissal of Writ Petition No. 17883 of 1991 is set aside and the said writ petition is remitted to the High Court to dispose of the same on merits. No costs."
3. Consequent upon the aforesaid Judgments of the Supreme Court, the writ petitions were again taken up by the learned single Judge who has been pleased to dismiss the writ petitions as stated hereinabove. Being aggrieved, the writ petitioners have filed the Special Appeals in question. Learned single Judge being of the view that "issuance of advertisement was mandatory in case appointing authority invited the applications directly" held that "the non-compliance of the same caused violation of the said" since the appellants were appointed without inviting applications directly from the persons registered in the Employment Exchange. Learned single Judge, however, directed the authorities to consider the appellants for regularisation in the light of the judgment of the Supreme Court in Khagesh Kumar and others v. I.G. Registration and others, JT 1995 (7) SC 545.
4. We have heard Shri R. B. Singhal for the appellant and standing counsel appearing for the State authorities.
5. Learned counsel for the appellants submitted, inter alia, that the impugned orders of termination of the appellants' services were passed in complete violation of the Rules of natural justice ; and that the appellants were appointed on the recommendation of a duly constituted selection committee and the question whether the appointments were made in violation of the rules as alleged in the counter-affidavits, ought not to have been decided without affording an opportunity of hearing to the appellants. The submissions made by the learned counsel for the appellants are not without substance. In Basudeu Tiwari v. Sido Kanhu University and others, JT 1998 (6) SC 464, the Apex Court reiterated the principles of natural justice in such matters as enunciated in its earlier decisions in Delhi Transport Corporation v. D. T. C. Ma/door Congress. JT 1990 (3) SC 725, Mohinder Singh Gill and another v. Chief Election Commissioner and others, AIR 1978 SC 851. and S. L.
Kapoor v. Jagmohan and others. AIR 1981 SC 136 and held as under :
"In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act. statutes rules or regulations etc., a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessary enquiry will have to be held and in holding such an enquiry the person whose appointment is under enquiry will have to be issued to him. If notice is not given to him then it is like playing Hamtet without the price of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as notice by this Court in D.T.C. Mazdoor Sabha's case. In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act. statutes rule or regulation etc. and it is only on such a conclusion being drawn. the services of the person could be terminated without further notice."
6. One of us (S. R. Singh, J.) has taken similar view in Mohd. Raish Ahmad v. State of U. P. and others, (1998) 2 UPLBEC 1232 and Sanjeev Kumar and others v. State of U. P. and another, (1999) 1 UPLBEC 575, The orders impugned in the writ petitions, in our opinion, are liable to be quashed for violation of principles of natural Justice.
7. The other question that calls for determination is whether Rule 22 of the U. P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules. 1985 is mandatory? In order to appreciate the question, the Rule aforestated is quoted below :
"Rule 22. The appointing authority shall determine the number of vacancies to be filled during the course of the year as also the vacancies to be reserved under Rule 7. The vacancies shall be notified to the Employment Exchange. The appointing authority may also invite application directly from the persons who have their names registered in the Employment Exchange. For this purpose, the appointing authority shall issue an advertisement in a local daily newspaper besides pasting a notice for the same on the notice board. All such applications shall be placed before the Selection Committee."
8. The requirement of the Rule that the vacancies shall be notified to Employment Exchange is, in our opinion, mandatory. It is not disputed that the vacancies in the instant case were in fact notified to Employment Exchange. In so far as the second part of Rule 22 of the Rules which requires that the "appointing authority may Invite applications directly from the persons who have their names registered in the Employment Exchange" is concerned, the same is directory. The appointing authority has been given discretion to Invite applications directly from the persons who have thetr names registered in the Employment Exchange in addition to the vacancies being notified to the Employment Exchange and consider their candidature along with the candidates sponsored by the Employment Exchange. It is only when the appointing authority decides to invite applications directly from person who have their names registered in the Employment Exchange that it would be necessary to issue an advertisement for that purpose in a local daily newspaper. Since the appointing authority did not Invite applications directly from the candidates who had their names registered in the Employment Exchange, the question of issuing an advertisement in a local daily newspaper besides pasting a notice for the same on the notice board did not arise. Since the vacancies were notified to the Employment Exchange. Rule 22 in substance stood compiled with and the services of the appellants were not liable to be terminated, and in no case without affording opportunity of hearing to the appellants, merely because they had applied for appointment directly and were not sponsored by the Employment Exchange. The Rule does not. In our opinion. Inhibit persons registered with the Employment Exchange to directly apply for appointment nor does It prohibit the appointing authority to consider such applications notwithstanding the fact their names were not sponsored by the Employment Exchange. In the fact situation of the case, appointments in question were not liable to be terminated and in no case without affording an opportunity to the appellant. The judgment of the learned single Judge is liable to be set aside and the orders impugned in the writ petitions are liable to be quashed. In such view of the matter, the question of issuing a direction to the concerned authority to consider the case of the appellants for regularisation in accordance with the Judgment of the Apex Court in Khagesh Kumar (supra) does not arise.
9. In view of the above discussion, the appeals succeed and are allowed. The judgments under challenge are set aside and the orders Impugned in the writ petitions are quashed. The respondents are directed to give consequential benefits to the appellants. Parties shall bear their own costs.