JUDGMENT Dilip Gupta, J.
1. This petition has been filed for quashing the order dated 28th June, 1995 by which the Chairman, Zila Panchayat, Maharajganj (hereinafter referred to as the 'Chairman') has cancelled the temporary appointments of the petitioners made on 15th March, 1995 and terminated their services with immediate effect on payment of one month's salary.
2. The issue involved in this petition is regarding certain appointments made in the year 1995 in the Zila Panchayat, Maharajganj (hereinafter referred to as the 'Zila Panchayat'). The Selection Committee met on 11th March, 1995 for recommending the names of the candidates for the post of Second Grade Clerk, Cashier and Tax Inspector and on the basis of the names recommended by the Selection Committee, petitioner Nos. 1 to 7 were appointed as Second Grade Clerk while petitioner Nos. 8 to 11 were appointed as Tax Inspectors by the appointment order dated 15th March, 1995 that was issued by the Chairman. It was specifically mentioned in the appointment order that the appointments were purely temporary in nature and the candidates were also required to produce the certificates/documents mentioned in the appointment order along with their joining reports. On the basis of the aforesaid appointment order, the petitioners started working. Subsequently the impugned order dated 28th June, 1995 was issued by the Chairman mentioning that the procedure prescribed for making the selection had not been followed as neither wide publicity, as was required, was given to the advertisement and nor was the selection conducted by the Selection Committee in accordance with prescribed procedure. The Financial Advisor, Zila Panchayat, Maharajganj and the Finance Officer, Zila Parishad, Lucknow also raised serious objections about the legality of the appointments. It is this order dated 28th June, 1995 that has been impugned in the present petition.
3. I have heard Sri Arvind Srivastava and Sri K.M. Mishra larned counsel for the petitioners and Sri B.D. Mandhyan, learned Senior Counsel for the respondents.
4. Learned Counsel for the petitioners submitted that the procedure as prescribed under Rules 21 and 22 of the Uttar Pradesh Zila Parishad Servie Rules, 1970 (hereinafter referred to as the 'Rules') for making the appointments had been followed by the Zila Panchayat and, therefore, the averments to the contrary made in the impugned order were against the records. He pointed out that on 1st March, 1995 the Chairman had sent a communication to the Hon'ble Minister for grant of sanction of 9 posts and permission to make appointments and even though the Hon'ble Minister concerned had sent the letter dated 8th March, 1995 to the Chairman of the Zila Panchayat to initiate the steps for making appointments in anticipation of the creation of the posts, yet prior to that telephonic information had also been given by the Hon'ble Minister to the Chairman of the Zila Panchayat on 1st March, 1995 to start the procedure for making the appointments and in pursuance of the aforesaid telephonic conversation, information had been sent to the Employment Exchange on 2nd March, 1995 to send the list of the candidates and since the list was not received from the Employment Exchange, advertisement was issued1 in the daily Newspaper 'Rashtra Chinha' on 4th March, 1995 mentioning there that the last date for receipt of the application forms was 8th March, 1995 and the Selection Committee meeting would be held on 11th March, 1995. He, therefore, submitted that Rule 22 had been complied with and, therefore, there was no infirmity in the selection procedure. He further submitted that after the approval to the creation of the posts and for making appointments had been granted by the State Government by the letter dated 14th March, 1995, the Chairman of the Zila Panchayat issued the order on 15th March, 1995 appointing the petitioners on temporary basis even though all of them should have been given substantive appointments. Learned Counsel also submitted that the order dated 28th June, 1995 was liable to be quashed as it was passed without giving any opportunity of hearing and that as the 20 appointments made in Zila Panchayat, Gorakhpur on the basis of the same selection held on 11th March, 1995 had been confirmed, the Zila Panchayat, Maharajganj acted in an arbitrary and discriminatory manner in cancelling the appointments and not confirming the services of the petitioners.
5. Sri B.D. Mandhyan, learned Senior Counsel for the Zila Panchayat submitted that district Maharajganj had been carved out from district Gorakhpur by the notification issued in October, 1989 and even though there were surplus staff in the Zila Panchayat, yet it sought creation of posts and that too without following the procedure prescribed under Rule 5 as neither any approval of the Commissioner had been sought for creating the posts and nor such a proposal was moved by the Mukhya Karya Adhikari before the Karya Samiti or placed before the Board. He defended the order dated 28th June, 1995-and submitted that the procedure adopted for making the selections was contrary to the procedure provided for in Rules 21 and 22 since the vacancies had not been advertised in the manner provided for under the Rules and in fact there was no publicity at all and that in such cases, opportunity of hearing was not required to be given and that if the appointments were illegal, the question of any discrimination vis-a-vis, the employee of the Gorakhpur Zila Panchayat did not arise at all. He further submitted that extraordinary haste had been shown in making the selections by the then Chairman of the Zila Panchayat as the appointments could not have been made after 20th March, 1995 since the elections had been notified by the Election Commission on 20th March, 1995. He also submitted that the appointment of the petitioners had not been made on 15th March, 1995 but had been antedated as is apparent not only from the telex sent by the Hon'ble Minister to the Chairman to meet him in Lucknow on 18th April, 1995 at 11.00 AM to discuss the appointments of the candidates but even the documents/certificates which were required to be submitted as per the appointment orders were submitted subsequently and even the attendance of the petitioners for the month of March and upto 21st April, 1995 was not marked in the regular attendance Register in which the names of 16 employees of the Zila Panchayat was mentioned but a fresh attendance register was prepared from 1st March, 1995 to 31st December, 1995 to show their names as in the old attendance register there was no place for addition of the names of the petitioners.
6. I have carefully considered the rival submissions made by the learned Counsel for the parties.
7. In order to properly appreciate the contentions advanced by the learned Counsel for the parties, it would be necessary to refer to the relevant provisions of the Uttar Pradesh Kshetra Samiti and Zila Parishad Adhiniyan, 1961 (hereinafter referred to as the 'Act') and the Rules framed thereunder.
8. Section 17 of the Act deals with the establishment and incorporation of Zila Panchayats. It provides that there shall be a Zila Panchayat for each district bearing the name of the District. Section 33 deals With general power and functions of Zila Panchayats. Section 39 of the Act deals with the officers and servants of the Zila Panchayat. Sub-clause (1) of Section 39 provides for various posts of officers in the Zila Panchayat and Sub-section (2) provides that subject to such conditions as may be prescribed, the Zila Panchayat may, in connection with its affairs, create posts of such other officers and other servants as may be prescribed by the Rules. Sub-clause (3)(b) provides that the State Government may, by order, create any other post of officer or servant in a Zila Panchayat. Section 43 of the Act deals with method of appointment. Sub-section (3) provides that the appointments may be made on the advice of the Chunao Samiti. The Constitution of the Chunao Samiti has been provided in Section 45 of the Act.
9. Rule 4 of the Rules deals with the creation of posts and is as follows:
4. Creation and combination of posts by Zila Parishads.-(1) No post not mentioned in Schedule 'A' shall be created by a Zila Parishad Under Sub-section (2) of Section 39 of the Act, nor sh any existing post be combined with another post except with the prior sanction of the State Government and on such terms and conditions as the State Government may specify in that behalf.
(2) The Zila Parishad shall not create the posts of Atirikta Karya Adhikari, Atirikta Abhiyanta and Atirikta Swasthya Adhikari except with the prior approval of the State Government.
(3) Except with the prior approval of the Commissioner of the Division the Zila Parishad shall not create a post, falling under any of the categories' mentioned in Schedule 'A' over and above the number of such posts existing in the Parishad on the date of coming into force of the rules.
10. Rules 21, 22 and 23 of the Rules deal With appointment by direct recruitment. They provide that appointment shall be made on the recommendation of the Chunao Samiti constituted under Section 45 of the Act, and are as follows:
21. Appointment by direct recruitment.-Where appointment to a post under Sub-section (3) of Section 43 of the Act is to be made by direct recruitment, the Chunao Samiti constituted under Section 45 shall decide whether the selection shall be made by holding as interview or a written examination or both.
22. Intimation to Employment Exchange.-The Appointing authority shall invite the names of candidates from the District Sub-Regional Employment Exchange within a reasonable time to be fixed by the appointing authority. Where no name is forwarded by the Exchange within the fixed time or if the number of names forwarded is less than three time the number of vacancies, notified, the appointing authority shall invite applications directly by advertisement in prominent daily newspaper including local daily newspapers, if any. The applications received directly shall be in the form prescribed by the appointing authority and obtainable from the Mukhya Adhikari. The applications received including the names forwarded by the Exchange shall be scrutinized by the Mukhya Adhikari and a list of the applicants qualified for the post shall be prepared and placed before the Chunao Samiti, along with the applications in original and the particulars sent by the Exchange.
23. Appointment to be made on the recommendations of Chunao Samiti.-After the selection has been made by the Chunao Samiti, the appointing authority shall make the appointment in accordance with the recommendation of the Chunao Samiti.
11. Rule 50 of the Rules deals with the termination of service of temporary officers and servants otherwise than under the orders of dismissal and removal from service and is as follows:
50. Termination of service of temporary officers and servants otherwise than under orders of dismissal or removal from service.-(1) The services of a temporary officer of servant of a Zila parishad, other than the persons referred to in Sub-section (1) of Section 46 of the Act shall be liable to termination at any time by one month's notice in writing given either by the officer of servant to the appointing authority or by the appointing 'authority the officer of servant:
Provided that such officer/servant of the appointing authority may substitute for the whole or part of the said period of notice, pay in thereof:
Provided further that it shall be open to the appointing authority to relieve a servant without any notice by such servant or notice for a shorter period, without requiring the servant to pay any penalty in lieu of notice:
Provided also that in case of direct appointment made in short and leave vacancies it shall not be necessary for the appointing authority to give any. notice or any pay in lieu thereof before terminating the service....
12. The records of the Writ Petition indicate that the process for making the selection actually started when the letter dated 1st March, 1995 was sent by the Chairman of the Zila Panchayat to the Hon'ble Minister for not only sanctioning the creation of 9 additional posts but for also giving permission to make the appointments against the aforesaid posts because a ban had been imposed by the State Government on making any appointment. The petitioners have brought on record the communication dated 8th March, 1995 sent by the Hon'ble Minister to the Chairman of the Zila Panchayat in connection with the aforesaid communication dated 1st March, 1995. It mentions that the Chairman may proceed to hold the selections in anticipation of the creation of the posts. Thus, even if it be assumed that the selection process could have proceeded in spite of the ban imposed by the State Government and in anticipation of the creation of the posts, then too the selection procedure could have been initiated only on or after 8th March, 1995. The letter dated 13th March, 1995 sent by the Chairman of the Zila Panchayat, however, indicates that the process had been initiated on 2nd March, 1995 on the basis of some telephonic instructions received from the Hon'ble Minister on 1st March, 1995. The letter dated 8th March, 1995 sent by the Hon'ble Minister to the Chairman of the Zila Panchayat does not make any mention of the telephonic conversation said to have been held on 1st March, 1995. It is, therefore, clear that the process was deliberately started, earlier without any authority so that it could be completed before 20th March, 1995 as the elections had been notified and no appointment could be made after that date. The alleged telephonic conversation of 1st March, 1995 has been merely mentioned to give some sort of authenticity to the selection procedure.
13. It is also clear from the letter dated 13th March, 1995 that the time period given to the Employment Exchange for sending the list of candidates was not mentioned though in the counter affidavit, it has been stated that the names were invited from Employment Exchange for seven posts only and only three days' time had been given for submission of the application forms.
14. Rule 22 of the Rules clearly provides that the appointing authority shall invite the names of the candidate from the employment exchange within a reasonable time to be fixed by the appointing authority and where no name is forwarded by the Employment Exchange within the fixed time or if the number of names forwarded is less than three times the number of Vacancies notified, the appointing authority shall invite applications directly by advertisement in prominent daily Newspapers including local daily Newspapers, if any. The applications received including the names forwarded by the Exchange shall then be scrutinized by the Mukhya Karya Adhikari and the list of the applicants qualified for the post shall be prepared and placed before the Chunao Samiti along with the applications in original and the particulars sent by the Employment Exchange.
15. The petitioners have not placed on record the communication dated 2nd March, 1995 said to have been sent by the Zila Panchayat to the Employment Exchange. There is also nothing on the record to indicate the mode by which this letter was sent to the Employment Exchange or the date when it was actually received in the Employment Exchange. Rule 22 of the Rules specifically provides that a reasonable time has to be given to the Employment Exchange for sending the names but in the instant case only three days' time was given which cannot be said to be a reasonable time. It cannot, therefore, be said that a reasonable time had been given to the Employment Exchange to send the list of candidates even if it be assumed that the letter was actually sent and received in the Employment Exchange.
16. Under Rule 22, the advertisement was required to be published only when the Employment Exchange did not send the list or the names forwarded were less than three times the number of the vacancies notified, but surprisingly without waiting for even three days, the advertisement is said to have been published in the Newspaper on 4th March, 1995. The petitioners have not placed the Newspaper publication which would have indicated the date on which it was actually published and the time period given for submitting, the applications. Rule 22 contemplates wide publication of the advertisement since it provides that the advertisement should be issued in prominent daily Newspaper including local daily Newspapers, if any. The letter dated 13th March, 1995 indicates that the advertisement was published in only one newspaper on 4th March, 1995 and applications were invited up to 8th March, 1995. Thus, even if it be assumed that the advertisement had actually been published in the Newspaper then too only four days' time was given for submitting the application forms which cannot by any standard be said to be a reasonable time for submitting the applications. The procedure adopted by the Zila Panchayat in making the appointments indicates that such extraordinary haste had been shown so that the appointments could be made before 20th March, 1995 as after that date they could not have been made because the elections had been notified by the Election Commission.
17. This apart, there is nothing on the record to indicate that the applications had been submitted in the form prescribed by the appointing authority and obtained from the Upper Mukhya Adhikari or that the Mukhya Adhikari had scrutinized the applications and prepared a list of qualified candidates for being placed before the Chunao Samiti. This is what was required to be done in view of the procedure contained in Rule 22. In fact, what has been stated in the counter affidavit is that the applications were not submitted before the receipt clerk of the Zila Panchayat but had been received by either the Chairman of the Zila Panchayat or his Stenographer.
18. The proceedings of the Selection Committee also indicate that the Upper Mukhya Adhikari had clearly pointed out that selections should be done only-after receipt of the approval from the Panchayati Raj, Anubhag-2 but the Chairman of the Zila Panchayat insisted that this would be violative of the order of the Hon'ble Minister as he had informed him on telephone that the list of selected candidates should be sent to him for approval and in case the Upper Mukhya Adhikari had any objection then the Hon'ble Minister may be informed of this fact. The proceedings of the Selection Committee also contain a recital that in order to give due respect to the order passed by the Hon'ble Minister, the Upper Mukhya Adhikari had participated in the selection process. These facts clearly indicate that all the prescribed norms contained in the Rules for making, the selection had been given a go by on the directions of the Hon'ble Minister. Such a procedure is not contemplated under the Rules and cannot be countenanced,
19. The selection process was, therefore, a mere farce. The eligible candidates did not get a fair opportunity to participate in the selection process and it appears that only a very limited number of candidates could submit their applications. What is also to be noticed is that the applications were not submitted to the receipt clerk but were submitted directly to the Chairman of the Zila Panchayat or his stenographer.
20. The records also indicate that the Selection Committee met on 11th March, 1995 and selected 31 candidates out of which 20 were appointed in the Zila Panchayat, Gorakhpur and 11 were appointed in Zila Panchayat, Maharajganj. After the selections had been made, a communication dated 13th March, 1995 was sent by the Chairman of the Zila Panchayat to the Hon'ble Minister, Panchayati Raj informing him about the aforesaid selection and for creation of the posts and for seeking approval to the appointments so made. A copy of the aforesaid letter was also sent to the Secretary, Panchayati Raj. The Under Secretary, Government of U.P. then sent the communication dated 14th March, 1995 to the Chairman of the Zila Panchayat in connection with his communication dated 13th March, 1995. It was mentioned that approval had been given to the creation of the 9 posts and also for making the appointments. It was also mentioned that the Zila Panchayat could proceed to make the appointments in accordance with the Rules and to that extent the ban imposed by the Radiogram dated 25th December, 1993 on making the appointments was relaxed. Thereafter the Chairman of the Zila Panchayat issued the orders dated 15th March, 1995 giving temporary appointments to seven Second Grade Clerks and four Tax Inspectors.
21. In response to the averments made in the counter affidavit that the appointments had been ante-dated as is apparent not only from the telex sent by the Hon'ble Minister to the Chairman to meet him in Lucknow on 18th April, 1995 at 1 1.00 AM to discuss the appointments of the candidates but even the documents/certificates which were required to be submitted as per the appointment orders were submitted subsequently and even the attendance of the petitioners for the month of March and upto 21st April, 1995 was not marked in the regular attendance Register in which the names of 16 employees of the Zila Panchayat was mentioned but a fresh attendance register was prepared from 1st March, 1995 to 31st December, 1995 to show their names as in the old attendance register there was no place for addition of the names of the petitioners, the petitioners have merely stated that the averments are not admitted.
22. The aforesaid facts have to be kept in mind while examining the legality of the decision taken by the Chairman of the Zila Panchayat in cancelling the temporary appointments of the petitioners. The Supreme Court has repeatedly emphasized that appointment to any post can be made only after proper advertisement has been made inviting applications from eligible candidates and any appointment without holding the proper selection where all eligible candidates get a fair chance to compete would be violative of Article 16 of the Constitution of India and, therefore, illegal. It has also been observed that there has to be equality of opportunities in matters of public employment and this principle would also govern the instrumentalities that come within the purview of Article 12 of the Constitution of India.
23. In this connection reference may be made to the decision of the Supreme Court in Union Public Service Commission v. Girish Jayanti Lal Baghela and Ors. wherein it was observed:
... The appointment to any post under the State can. only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the Employment Exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.
24. Reference may also be made to the Constitution Bench decision of the Supreme Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors. , in which it was observed:
... Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. ...
In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment...In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution...
Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, "consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. ...
25. In the present case, it is clear that the procedure for selection had started even prior to the creation of the posts and prior to the permission granted by the State Government for making such selections merely on the basis of some instructions received from the Hon'ble Minister. The facts also reveal that though the written instructions were sent on 8th March, 1995 but the selection process had started on 2nd March, 199 on the basis of a telephonic conversation between the Hon'ble Minister and the Chairman of the Zila Panchayat which telephonic conversation is. not mentioned in the communication dated 8th March, 1995. Neither was sufficient and reasonable time granted to the Employment Exchange to send the list of the candidates and nor was sufficient and reasonable time granted to the candidates to submit their applications on the basis of the alleged advertisement. The Upper Mukhya Adhikari had also raised strong objections to such a procedure in the meeting of the Selection Committee but there was a latent threat exerted on him to participate in the selection process because otherwise he was directed to speak to the Hon'ble Minister. It cannot, therefore, be doubted that the provisions of Rule 22 had been violated while making the temporary appointments.
26. The question, therefore, that needs to be determined is whether the Chairman of the Zila Panchayat was justified in cancelling these appointments that had been made contrary to the provisions of the Rules but at the same time it must also not be forgotten that the petitioners had been appointed on temporary basis and a temporary employee has no right to the post as has been held by the Supreme Court in the cases of State of U.P. v. Kaushal Kishore Shukla ; Triveni Shankar Saxena v. State of U.P. and Ors. ; Commissioner of Food and Civil Supplies v. Prakash Chandra Saxena ; Ram Chandra Tripathi v. U.P. Public Services Tribunal and Ors. ; Madhya Pradesh Hast Shilpa Vikas Nigam Ltd. v. Devendra Kumar jain and Anr. .
27. The Supreme Court in Pankaj Gupta v. State of Jammu & Kashmir and Ors. 2004 AIR SCW 5332 has clearly observed that a person illegally appointed or appointed without following the procedure prescribed under the law is not entitled to claim that he should be continued in service. In A. Umarani v. Registrar, Co-operative Societies and Ors. , the Supreme Court also observed that appointments made in contravention of mandatory provisions of the Act and the Statutory Rules framed thereunder would be illegal. In Union Public Service Commission (supra) the Supreme Court emphasized that any appointment made without holding a proper selection where all eligible candidates get a fair chance to compete would be violative of the guarantee enshrined under Article 16 of the Constitution. In Umadevi (supra) the Supreme Court also observed that unless the appointment was made in terms of the relevant rules and after a proper competition among the qualified persons, the same would not confer any right on the appointee.
28. In view of the principles laid down by the Supreme Court in the aforementioned cases, and in view of the fact that the Zila Panchayat had completely violated the provisions of the Rules while making the appointments, the decision taken by the Chairman of the Zila Panchayat to cancel the appointments within a period of about three months does not suffer from any infirmity.
29. Learned Counsel for the petitioners then submitted that even in such a matter, it was obligatory for the Chairman of the Zila Panchayat to have given opportunity to the petitioners to place their version before cancelling their temporary appointments.
30. It cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi v. State Bank of India and Ors. ; N.K. Prasad v. Government of India and Ors. ; State of Punjab v. Jagir Singh ; Karnataka SRTC v. S.G. Kotturappa and in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. .
31. In Union of India v. Tulsiram Patel the Supreme Court observed:
Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible.
32. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in Sohan Lal Gupta v. Asha Devi Gupta ; Mardia Chemicals Ltd. v. Union of India and Canara Bank v. Debasis Das .
33. Wade 'On Administrative Law' 5th Edition at pages 472-475 has observed that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply and nor as to their scope and extent. Everything depends on the subject-matter. The application of principles of natural justice, resting as. it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a mere technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.
34. The Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad v. B. Karunakar made reference to its earlier decisions and observed:
In A.K. Kraipak v. Union of India it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.
In Chairman, Board of Mining Examination v. Ramjee the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
35. The Supreme Court in Mohd. Sartaj and Anr. v. State of U.P. and Ors. 2006 AIR SCW 399, after considering a number of its earlier decisions made the following observations with regard to the requirement of giving notice and the same are as follows:
In M.C. Mehta v. Union of India , this Court has laid down that there can be certain situation in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example, where no prejudice is caused to the person concerned interference under Article 226 is not necessary., In the case of Aligarh Muslim University v. Mansoor Ali Khan , this Court considered the question whether on the facts of the case the employee can invoke the principle of natural justice and whether it is a case where, even if notice has been given, result would not have been different and whether it could be said that no prejudice was caused to him, if on the admitted or proved facts grant of an opportunity would not have made any difference. The Court referred to the decisions rendered in M.C. Mehta v. Union of India (supra), the exceptions laid down in S.L. Kapoor's case (supra) and K.L. Tripathi v. State Bank of India , where it has been laid down that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) has to be proved. The Court has also placed reliance in the matter of S.K. Sharma v. State Bank of Patiala , and Rajendra Singh v. State of M.P. , where the principle has been laid down that there must have been some real prejudice to the complainant. There is no such thing as merely technical infringement of natural justice. The Court has approved this principle and examined the case of the employee in that light. In Viveka Nand Sethi v. Chairman, J.&K. Bank Ltd. and Ors. , this Court has held that the principles of natural justice are required to be complied with having regard to the fact-situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. In another recent judgment in the case of State of U.P. v. Neeraj Awasthi and Ors. , while considering the argument that the principle of natural justice had been ignored before terminating, the service of the " employees and, therefore, the order terminating the service of the employees was bad in law this Court has considered the principles of natural justice and the extent and the circumstances in which they are attracted.... Applying this principle, it could very well be seen that discontinuation of the service of the appellants in the present case was not not a punitive measure but they were discontinued for the reason that they were not qualified and did not possess the requisite qualifications for appointment.
... In view of the basic lack of qualifications, they could not have been appointed nor their appointment could have been continued. Hence the appellants did not hold any right over the post and, therefore, no hearing was required before the cancellation of their services. In the present case, the cancellation order has been issued within a very short span of time giving no probability for any legitimate expectation to the appellants regarding continuation of their service.
36. It is clear from the aforesaid decisions of the Supreme Court that the application of the principles of natural justice depend upon the relevant facts and circumstances of the case and whenever a complaint is made about its violation, the Court has to decide whether the observance of that Rule was necessary for a just decision on the facts of the case. It has also been observed that there can be a situation where an order need not be aside even if it is passed in violation of natural justice like where no prejudice is caused to the person concerned, interference under Article 226 of the Constitution is not necessary. The decision also lay down that where facts are admitted, an enquiry would be an empty formality.
37. It is in the light of the aforesaid principles enunciated by the Supreme Court that it has to be examined whether opportunity was required to be given to the petitioners before cancelling their temporary appointments and terminating their services on payment of one month's salary. The reason assigned by the Chairman of the Zila Panchayat for cancelling the appointments is that the vacancies had not been duly advertised in the manner prescribed and that the entire selection procedure was a farce. The manner in which the selections were made have been described in the communication dated 13th March, 1995 sent by the Chairman of the Zila Panchayat to the Hon'ble Minister and the same is also clear from the proceedings of the Selection Committee: The entire procedure had been found to be a complete farce and in breach of the provisions contained in Rules 21 and 22 of the Rules. In such an eventuality, particularly when the petitioners have not brought on record any fact/document which may show that the appointments had been validly made, giving of any notice would be an empty formality. This is what has been observed by the Supreme Court in Mohd. Sartaj (supra). The case of the petitioners fall within the exceptions laid down by the Supreme Court in cases where facts are admitted as no prejudice can be said to have been caused to the petitioners and indeed none has been pointed but. In the facts and circumstances of the case, I am satisfied that interference under Article 226 of the Constitution of India is not warranted even though opportunity was not given to the petitioners before cancelling their temporary appointment orders. Rule 50 clearly provides that service of a temporary officer or servant of a Zila Parishad can be terminated at any time by one month's notice in writing but such notice can be substituted by pay. In the present case, the appointment of the petitioners was purely temporary in nature and has been terminated within a period of three months on payment of one month's salary. The contention of the learned Counsel for the petitioners that even in such circumstances opportunity was required to be give, cannot, therefore, be accepted in view of the decisions of the Supreme Court referred to above.
38. The matter can be examined from another angle and that is whether this Court under Article 226 of the Constitution of India should quash an order on the ground of breach of natural justice if it would result in the restoration of an order passed earlier in favour of the petitioner which is otherwise not in accordance with law.
39. The Supreme Court in the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors. refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice and observed as follows:
In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order- it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise as extraordinary discretionary power in the circumstances of the case.
40. Similar view was taken by the Supreme Court in Mohammad Swalleh and Ors. v. Third Addl. District Judge, Meerut and Anr. ; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors. and Mallikarjuna Mudhagal Nagappa and Ors. v. State of Karnataka and Ors. wherein it was held that interference was not necessary if it resulted in restoration of an order which was not legal.
41. In the present case, if the order dated 28th June, 1995 is quashed, it would result in reviving the illegal appointment orders and, therefore, also in view of the aforesaid decisions, it would not be appropriate to quash the orders on the ground that principles of natural justice had been violated.
42. Learned Counsel for the petitioners also compared the case of the petitioners with that of the employees of the Gorakhpur Zila Panchayat who had been given temporary appointments also on the basis of the same selection and it was contended that discrimination had been practiced inasmuch as the services of the employees of Gorakhpur, Zila Panchayat were subsequently confirmed. In order to appreciate the contentions of the learned Counsel for the petitioners, it would, first be necessary to examine as to under what situation the services of employees can be regularised.
43. In Ashwani Kumar and Ors. v. State of Bihar and Ors. , the Supreme Court examined the validity of confirmation of the irregularly employed and it was observed:
So far as the question of confirmation of these employees whose entry was illegal and void is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in a regular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility.
44. In A. Umarani v. Registrar, Co-operative Societies and Ors. the Supreme Court examined whether the State Government was justified in issuing orders from time to time regularising the services of a large number of employees of the Co-operative Societies who had been appointed without notifying the vacancies to the Employment Exchanges and without following the other mandatory provisions. The Supreme Court upheld the decision of the High Court by which the order for regularisation was quashed and in this context it was observed:
Regularisation in our considered opinion is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization (See State of H.P. v. Suresh Kumar Verma and Anr. ).
45. A Constitution Bench of the Suprerne Court of five Hon'ble Judges in the case of Umadevi (supra) examined at length the issue about regularisation of services of daily wage/ad hoc employees as there were conflicting decisions and it would be appropriate to refer to the relevant portions of the judgment which are as follows:
The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post.... It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
...
While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. ...The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India...
...Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent....
... No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service....
46. In the case of State of Haryana v. Piara Singh and Ors. , the Supreme Court did observe that if for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State but the Constitution Bench of the Supreme Court in the case of Umadevi (supra) observed that the direction clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision and, therefore, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.
47. It is in the light of the aforesaid principles laid down by the Supreme Court that the services of employees can be regularised. In the present case the question of regularisation does not arise at all because the petitioners are not in service after 28th June, 1995. This apart, even if they had continued in service, it would have been very difficult to accept their submission about regularisation since the appointments had been made contrary to the provisions contained in Rule 22. In the case of Umadevi (supra) the Constitution Bench of the Supreme Court emphasised that such irregular appointments without complying with the procedure prescribed under the Rules do not confer any right upon the employees to seek regularisation and mere working for some period or even considerable length of time is of no consequence.
48. The contention of the learned Counsel for the petitioner that the same benefit should have been conferred upon them by the Zila Panchayat, Maharajganj as had been conferred upon the employees of Zila Panchayat, Gorakhpur cannot also be accepted. It is for the petitioners to establish their own case and any wrong order passed in favour of others cannot confer upon them a ground to insist that an illegal order should be passed in their favour also.
49. This is what has been repeatedly observed by the Supreme Court. In Gurusharan Singh and Ors. v. NDMC and Ors. , the Supreme Court observed:
Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.
50. In Union of India and Anr. v. International Trading Co. and Anr. , the Supreme Court observed:
...A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. IT does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case....
51. In U.P. State Sugar Corporation Ltd. and Anr. v. Sant Raj Singh and Ors. 2006 AIR SCW 3013 the Supreme Court observed:
Moreover, Article 14, has.. a positive concept. Nobody can claim equality in illegality.
52. In Ekta Shakti Foundation v. Govt. of NCT of Delhi 2006 AIR SCW 3601 the Supreme Court observed:
In a converse case, in the first instance, one may be wrong but the wrong order cannot be foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right.
53. Thus, none of the contentions advanced by the learned Counsel for the petitioners has any force. The petition is, therefore, liable to be dismissed and is, accordingly, dismissed.