As the similar controversy is involved in all the above mentioned writ petitions, same are being disposed of by the common order.
Heard learned Counsel for the petitioners and learned Standing Counsel.
By the impugned orders dated 29.1.2007, 17.7.2007, 20.7.2007 and 21.7.2007 selection on Class IV post in Animal Husbandry Department was cancelled, which is under challenge in all the writ petitions by which appointment and selection of petitioners, who were selected and some of them were also appointed as Class IV employees in Animal Husbandry Department.
In nutshell, the case of the petitioners is that on 2.6.2005, an advertisement was issued by the Deputy Director, Animal Husbandry/opposite party No.3 for filling fifteen posts of Class IV employees in Animal Husbandry Department in Lucknow Division, Lucknow. Subsequently, a corrigendum of the aforesaid advertisement was issued indicating the last date of submission of application forms as 27.6.2005. Thereafter, on 17.9.2005, another advertisement was issued by the respondent No.3 for filling fifteen posts of Class IV employees in the said department. Petitioners being qualified also applied against the said posts advertised in the aforesaid two advertisements so their application forms were 2 found in order and they were called for interview. As eighty one vacancies were existing in the department, appointments were made against all the existing vacancies. Thereafter, on 22nd/23rd November, 2006, appointment letters were issued to the petitioners. In pursuance of the appointment letters, the petitioners joined on their respective posts. After joining on their respective posts, the petitioners were performing their duties to the utmost satisfaction of the higher authorities and there is no compliant against them from any quarter. In the meantime, on a complaint, an enquiry was made in the matter of appointment of the petitioners and the Enquiry Officer submitted its report on 29.1.2007. Even though no fraud and misrepresentation was found on the part of the petitioners in the said enquiry report, yet the impugned order dated 7.6.2007 was passed by the State Government directing the respondent No.2/Director, Animal Husbandry to cancel all 81 appointments made on Class IV posts. In pursuance of the order dated 7.6.2007, the impugned cancellation orders dated 20.7.2007 and 21.7.2007 have been passed.
Learned Counsel for the petitioners submits that the impugned orders passed by the respondents cancelling the selection/terminating the services of the petitioners are absolutely illegal, arbitrary, unreasonable and the same cannot be allowed to be sustained in the eyes of law. The appointments of the petitioners have been made against the sanctioned vacancies and there was a condition in the advertisements that number of vacancies may increase or decrease as such by no stretch of imagination can it be said that the appointments of the petitioners have been made in excess of vacancies. The impugned orders have been passed by the respondents without affording them an opportunity of hearing, as such, the same are violative of principles of natural justice. Even if assuming that the allegations made by the Enquiry Officer in his report dated 29.1.2007 are believed to be true, no allegation of any fraud or misrepresentation against the petitioners has been alleged in the said enquiry report or in the impugned order as before cancellation of appointment/termination of services of the 3 petitioners, principles of natural justice should have been adhered to. The selection of the petitioners has been cancelled without affording them any opportunity of hearing or to show cause in gross violation of principles of natural justice as they have worked continuously for almost seven months and have drawn their salaries and as such, a substantive legal right has accrued in their favour and the said right cannot be taken away without affording them opportunity of hearing.
Rebutting the arguments of the learned Counsel for the petitioners, learned Standing Counsel submits that the State Government accorded permission and in pursuance of that, an advertisement was issued on 13.6.2005 to fill-up 360 posts in which 15 posts were allocated for Lucknow Division. After completion of process of the interview, the Deputy Director issued appointment letters to 81 candidates, whereas only 30 posts were allocated to the Lucknow Division. Thereafter, one Ram Awadh Yadav made a complaint regarding the aforesaid illegality. On the basis of the complaint, the State Government directed the Director to conduct an enquiry and submit report within ten days. In pursuance of the directions issued by the State Government, the Director started enquiry ascertaining the facts from the Deputy Director, Animal Husbandry Division, Lucknow and inspected the records of his office as well as examined the members of selection committee and after completion of enquiry, he submitted his enquiry report dated 29.1.2007 to the State Government. From a perusal of the enquiry report, it reveals that according to the permission granted by the State Government, only 30 posts were allocated to the Lucknow Division, whereas the Deputy Director had issued a merit list containing 61 selected candidates. In addition to above, he issued a waiting list of 16 candidates, whereas according to Uttar Pradesh Pashu Palan Vibhas Samoogh 'Gha' Seva Niyamawali, 1993, the provision of making the waiting list in Group 'D' has been repealed, which was issued by the Personnel Department of State Government. In the said Rules, it has also been mentioned that if there is any contradiction between the departmental Service Rules and the Service Rules of the Karmic Department, then the Services Rules 4 of the Karmic Department will prevail.
Refuting the submissions made by the learned Standing Counsel, learned Counsel for the petitioners submits that as the Enquiry Officer in its enquiry report made one of the allegations that as per the service rules of the department maximum seven persons could have been kept in waiting list, whereas 16 persons have been kept in waiting list. The respondents have not produced the rules issued by the Karmik Division of the State Government by means of which, the provisions of making waiting list in Group 'D' have been repealed. Further, the impugned order cancelling the selection/termination of the petitioners' service has been passed in an absolutely illegal, arbitrary and unreasonable manner and in utter violation of principles of natural justice as no opportunity of hearing was provided to the petitioners and the petitioners after being appointed and worked for about seven months and being paid salary of their respective posts, substantive and legal right had accrued in their favour of being heard prior to passing of the impugned order.
Petitioners' counsel further contended that entire exercise was initiated on the basis of some frivolous complaint made by some persons who the petitioners believe to be a non-selectee who have no sanctity or basis and on account of said frivolous complaint, the petitioners have been made victim. In the advertisement, specific clause was provided mentioning that number of vacancies may increase or decrease, keeping in mind that after the initiation of process of selection there can be possibility of increasing or decreasing in the number of vacancies which have been advertised.
I have carefully considered the arguments of learned counsel for the petitioners and learned Standing Counsel and also perused the materials on record. It transpire from the record that the impugned orders were passed on the basis of the enquiry report submitted to the State Government. Undisputedly, the selection of the petitioners has been cancelled without affording them any opportunity of hearing or to show cause which is in gross violation of principles of natural justice as they have worked 5 continuously for almost seven months and have drawn their salaries and as such, a substantive legal right has accrued in their favour and the said right cannot be taken away without affording them opportunity of hearing.
The above view is supported by a decision of the Apex court in Union of India and others Vs. Rajesh P. U.
Puthuvalnikathu and another reported in (2003) 7 SCC 285. Relevant paragraphs read as under:
"In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of all pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities or illegalities, if any, there was hardly and justification in law to deny appointment to the other selected candidate whose selections were not found to be, in any manner, vitiated for any one or other other reasons. Applying a unilaterally rigid and arbitrary stand to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies giving a complete go-by to contextual consideration throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situated. In short the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selection, wholly unwarranted and unnecessary even on the factual situation too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such Dikinson to be irrational."
A number of persons have already been joined service in 6 pursuance of the appointment letters issued to them. By the impugned orders, their appointments were cancelled after joining without opportunity of being heard and as such, the orders are unsustainable in law also.
In this connection, it would be useful to refer the observations of the Apex Court in Sridhar Vs. Nagar Palika, Junpur reported in AIR 1990 SC 307. In this case, the Apex Court held as under:-
"It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him."
While terminating the services of an appointee who has been selected in the selection process, the compliance with the three principles as enumerated in Indrajeet Singh Kahlon Versus State of Punjab [2005 (11) SCC 356] is imperative at the hands of the state. These principles are (1) to establish satisfaction in regard to the sufficiency of the materials collected so as to enable the State to arrive at its satisfaction that the selection process was tainted; (2) to determine the question that the allegations committed go to the root of the matter which vitiate the entire selection process. Such satisfaction as also the sufficiency of materials were required to be gathered by reason of a thorough investigation in a fair and transparent manner; (3) whether the sufficient material present enabled the State go arrive at a satisfaction that the officers in majority have been found to be part of the fraudulent purpose or the system itself was corrupt.
It is also relevant to mention that the Hon'ble Supreme Court in the case of Union of India and others v. Rajesh P. U. Puthuvalinkathu and another (supra), observed that where from out of selectees, it was possible to read out the beneficiaries of the irregularities or illegalities there was no justification in law 7 to deny appointment to the selected candidates whose selection was not found to be, in any manner, vitiated for anyone or other reasons. The en bloc cancellation is not permissible.
In the case of Suvida Yadav and others Versus State of Haryana and others [(2002) 10 SCC 269], the Apex Court held that the recommendations of the names by Public Service Commission pursuant to the requisition, in excess of the number of posts advertised are valid and all the persons, so recommended, are entitled to be appointed.
In the instant case, from the material on record, it is abundantly clear that no such exercise was conducted by the opposite parties and by a single pen of stroke, entire selection process has been cancelled.
In view of the discussions made above, impugned orders in all three writ petitions, are liable to be quashed.
Accordingly, all the three writ petitions succeed and are allowed. The impugned orders dated 7.6.2007, 17.7.2007 and 20.7.2007 in Writ Petition No.4721 (SS) of 2007, 21.7.2007, 6.7.2007 and 29.6.2007 passed in Writ Petition No. 6714 (SS) of 2004 and 7.6.2007 and 20.7.2007 passed in Writ Petition No. 5192 (SS) of 2007 are hereby quashed.
Dt.1.2.2010 Lakshman/