JUDGMENT R.B. Misra, J.
1. Heard Sri Neeraj Tiwari learned counsel for the petitioner and Sri D. S. M. Tripathi learned counsel for the respondent Nos. 4, 5 and 6 as well as Sri S.S. Sharma, learned standing counsel for the respondent Nos. 1 to 3.
2. In this petition prayer has been made to quash the orders dated 21.9.2000 and 4.10.2000 (Annexures-9 and 10 to the writ petition respectively) whereby the petitioner appointed on compassionate ground was shifted to some other place and was released to proceed to resume charge on the new place of transfer.
3. With the consent of the learned counsel for the parties, this writ petition is disposed of finally at this stage in reference to second proviso to Rule 2 of Chapter XXII of the Allahabad High Court Rules, 1952.
4. According to the petitioner his father Sri Abhai Narayan Rai was appointed as Assistant Teacher in Shree Udia Baba Uchchattar Madhyamik Vidyalaya', Baijal Patti, Harhua, Varanasi a recognised institution under U. P. Intermediate Education Act, 1921 and by virtue of working as Assistant Teacher on 9.10,1981 when the petitioner's father was not paid salary, he preferred Civil Suit No. 78 of 1981 before the trial court along with the interim injunction. The interim injunction was rejected on 8.5.1984 against which the father of the petitioner filed Civil Appeal No. 200 of 1984 before District Judge with a prayer for revival of the interim relief. The learned District Judge initially granted interim relief for payment of salary and directed the District Inspector of Schools and management of the college for payment of salary. In compliance thereto, the petitioner's father was receiving salary, however Civil Appeal No. 200 of 1984 after final adjudication was dismissed on 15.9.1990 with an observation that balance of convenience was not in his favour, as the father of petitioner was not duly appointed as teacher in 'Vidyalaya' as such was not entitled to pay. It appears that subsequently in the year 1991 the suit was dismissed by the trial court, however even after restoration subsequently too was dismissed in the year 1998.
5. Feeling aggrieved against the order dated 8.5.1984 of trial court rejecting the interim injunction and dismissal of the appeal by the order dated 15.9.1990 by the first appellate court/District Judge, the father of the petitioner preferred Writ Petition No. 33526 of 1990, Abhai Narain Rai v. State of U. P. and Ors., and despite several opportunities where no counter-affidavit was filed, the interim direction was issued for payment of salary by the order dated 8.4.1992 of this Court. In compliance thereto, the father of the petitioner was getting salary. When the status position of the dismissal of the suit No. 78 of 1984 was apprised of this Court was pleased to dismiss the writ petition No. 33256 of 1990 by its order dated 9.5.2002. As stated on behalf of the petitioner a restoration application of order 9.5.2002 in Writ Petition No. 33256 of 1990 is pending. After the death of the petitioner's father on 15.12.1997 the petitioner submitted an application for getting employment on compassionate ground under U. P. Recruitment of Dependants of Government Servants (Dying-in-Harness) Rules, 1974 in short called 'Rules, 1974' and the petitioner was given appointment on 5.9.1998 in the same Vidyalaya as a 'class IV employee', however, some dispute arose as one Sri Dinesh Chandra was already working in the said Vidyalaya and when his appointment was challenged, he approached this Court by filing Writ Petition No. 44690 of 1998 which was disposed of by this Court on 29.1.1999 with direction for treating his appointment genuine and direction was issued for his payment also. In view of the direction dated 29.1.1999 the respondent No. 1 was directed to consider his representation and decide the same. In compliance thereto the District Inspector of Schools, Varanasi by its order dated 4th October, 2000 has found the appointment of Sri Dinesh Chandra to the class IV post as genuine.
6. In these circumstances, the petitioner was directed to be shifted to the class IV post in Subhash Intermediate College, Varanasi by order dated 19.9.2000 of D.I.O.S., Varanasi and consequent upon the petitioner was directed by the order dated 4.10.2000 to join as class IV employee in the aforesaid college where he was transferred. Being aggrieved against these two orders which are 19.9.2000 and 4.10.2000 the petitioner originally preferred this writ petition.
7. Counter and rejoinder-affidavits have been exchanged. During the pendency of the writ petition it appears that the order dated 6.1.2001 was passed by the D.I.O.S. terminating the service of the petitioner on the ground that the original appointment of the petitioner's father was obtained by forgery for which reliance was placed on the letter No. 2/4625/83-84 dated 25.2.1984 annexed as Annexure-C.A.-2 which according to the learned counsel Sri D. S. M. Tripathi for respondent was never challenged by the petitioner herein. It was indicated by the D.I.O.S. in the order dated 6,1.2001 that the father of the petitioner was appointed without vacancy and without approval of competent authority.
8. The petitioner's father approached before the trial court by filing suit No. 78/1984 which was dismissed on 8.5.1984 where the interim relief was rejected and appeal No. 200 of 1984 was also rejected by the District Judge on 15.9.1990 where it was noted that the petitioner's father was not found to have been duly appointed as 'Assistant Teacher' in Vidyalaya. In the light of these back ground the petitioner's father's appointment was said to be illegal, therefore, after his death the appointment of the petitioner on compassionate ground was said to be illegal also, however, the petitioner by way of amendment application has challenged this order dated 6.1.2001.
9. According to the counter-affidavit filed on behalf of the D.I.O.S. the assertions similar to that made in the order dated 6.1.2001 has been reiterated.
10. Now the question arises whether the appointment of the petitioner's father was genuine or not? If the appointment of the father of the petitioner was genuine then appointment of the petitioner could be made on the compassionate ground only on permanent basis.
11. If the petitioner's appointment was made and has joined and legal right had accrued then question arises whether his service could be terminated by the impugned order dated 6.1.2001 on the grounds indicated therein. According to the learned counsel for the petitioner Sri Neeraj Tiwari the petitioner's termination was behind the back, without proper opportunity of hearing, without serving the charge-sheet, without serving the documents relied upon, without giving opportunity of oral hearing, without giving opportunity to cross examine the witnesses and without making inquiry on the date, time and place fixed. In these circumstances, as contended for and on behalf of the petitioner that the order dated 6.1.2001 is not legally sustainable.
12. It is well-settled law that the appointment on compassionate ground is made on permanent basis, therefore, the initial appointment of the petitioner was to be made on the permanent basis only provided the father of petitioner was duly appointed teacher.
13. It has been submitted on behalf of the respondents that this Court (Hon'ble R.B. Misra, J.) in Civil Misc. Writ Petition No. 1648 of 1986, Mahendra Mishra v. Up-Nideshak (Prashasan), Rajya Krishi Utpadan Mandi Parishad and Anr., has observed that the writ petitioner appointed initially as daily wager, subsequently as a Mali in Mandi Parishad without proper advertisement, without his name being invited from the employment exchange, without legally constituting selection committee, without obtaining approval of Director, Mandi Parishad, in violation of the provisions of U. P. Agriculture Produce Market Committees (Centralised) Service Regulations, 1984, however, was terminated by an order simplicitor, such termination order was set aside keeping in view the peculiar facts and circumstances and the Deputy Director, Mandi Parishad, was directed to issue a fresh notice to the writ petitioner apprising him about the allegations about the selection, appointment and gains in any form or manner and alleged irregularities and procedural deficiencies occurred in the selection or appointment and after considering the records, documents and explanation and material submitted by the writ petitioner on fixed date, time, providing opportunity to writ petitioner to adduce the evidence, opportunity of oral hearing, to cross-examine the witnesses or to allow the writ petitioner to submit written statement/submission for fulfilling the requirement of principle of natural justice and to pass a reasoned order within six months from the date of such notice in accordance with law, and till then the writ petitioner was not to be reinstated to the post in question and his reinstatement and other service benefits was to depend upon the fresh decision to be taken by the Deputy Director of Rajya Krishi Mandi Utpadan Parishad.
Similar view was also taken by this Court (Hon'ble R.B. Misra, J.) in Civil Misc. Writ Petition No. 27437 of 1997, Mahendra Singh and Ors. v. State of U. P. and Ors.
In the above Mahendra Misra (supra) this Court (Hon'ble R.B. Misra, J.) has elaborated the situations in paragraph 7 and has dealt these aspects in subsequent paragraphs 101 to 104 as below :
"7. To deal the issue involved in the present case, it would be necessary to consider very important aspects in the interest of Justice, rule of law and in the great interest of public, when any particular process or selection or appointment has suffered from legal and procedural improprieties, deficiencies, irregularities, illegalities, foul-play, corruption, dubious, malpractice, fraud, forgery, falsity, scandal, misrepresentation, mala fide, favouritism, non-availability of post/vacancy, illegal and erroneous constitution of selection committee, selection being bad for lack of proper sanction of competent authority or for lack of competency of appointing authority and the said selection is defective for statutory procedural infirmities e.g., for non-publishing advertisement or not inviting names from employment exchange, selection made without interview, fake and ghost interviews, tempering with records, fabricating documents or non-observance of reservation policy, anomaly in preparation of select list, unauthorized appointments made beyond expiry of the select list, taking benefit of manipulation in date of birth and production of false certificates degree, lack of eligibility criteria, deficiency in qualification, admission to a course or benefits/ gains in any form procured by foul means, non-observance of other provisions or requirements of relevant Act, rules, regulations, bye-laws, norms. Government orders, official memorandum, legal established pattern, (as some examples out of many more variety of defects) then selected beneficiary candidate as an outcome of such defective selection or spoiled system if appointed and has started working, acquiring legal right to the post, shall be removed in the prescribed manner."
"101. It is well-settled that the appointment made from selection de hors the rules or provisions or the 'Act' applicable are unenforceable and inexecutable, thus, are to be set aside as the rule of law. The system and the public at large become susceptible, could never tolerate such illegality and the illegally appointed person being product of spoiled system, however, the declaration of such appointment of the beneficiary candidate to be a defective output or ingenuine product is to be made undergoing a process or by making inquiry or probe, needed in facts and circumstances in reference to the complaint or on the information to the State or competent authority. However, such probe or inquiry is for the specific purpose unlike disciplinary inquiry, nevertheless is to be exhaustive and broad based to such an extent so that in its optimum amplitude and horizon the affected party being a beneficiary candidate may also be given a chance by associating himself to consider his stand or say treating him a necessary ingredient or component and also in order that all possible aspects might be taken care of indicated above in the process and no scope is left or nothing remains or desired to be placed or incorporated on the part of the beneficiary candidate before finallsation of the verdict or declaration in respect of the ingenuinity or defectiveness or illegalities of selection or appointment or benefits/gains in any form. The social order, healthy system, interest of justice and interest of public requires that if any person has procured appointment by utilising forged degree or certificate or wrong date of birth or erroneous qualification or has used concocted documents to procure employment then service of such person if terminated by the Court on the sole ground of non-providing of opportunity of hearing or principle of natural justice then this may give unusual message tantamounting acknowledging such deficiencies and illegalities being completely ignored or rectified because the ingenuinity and misdeeds and foul play in the background persists in gain or appointment of such beneficiary candidate and it shall always pinch to the system as thorn to the healthy body. Likewise also, if one or many of the persons have procured appointment on the basis of some G.O., notification or order or circular, which later on after inquiry or probe turned out to be bogus, fake and non-existent then before declaring the selection or appointment as ingenuine or defective, if any person out of lot has been inquired into and defectiveness of appointment and selection has been proved then beneficiaries in mass are not to be heard separately. The principle of natural justice need not to be stretched too far so as to include in its ambit and scope of providing of opportunity of hearing a full-fledged detail inquiry in respect of deficiencies mentioned in paragraph 7 above. It all depends on the facts and circumstances. If some document, order, notification, circular found to be ingenuine and illegal, however, has been utilised for the purpose of procuring employment then the declaration that such order, document, notification or circular is bogus, forge, fake, nonexistent by author or competent authority in whose name these are said to be issued, then beneficiary candidates need not be given opportunity of hearing in the light of the verdict of Supreme Court in B. Sheetal Nandwani (supra).
"102. The defects as referred in paragraph 7 above are few examples only, there may be many more cause depending upon the facts and circumstances affecting the sanctity of appointment or selection or gains derived in any form. Need of hour and public demand is to get best calibre, output or product from the system, for which indeed the productive system has to be made healthy, clean, genuine. In any case everyone discards defective piece as product of spoiled system. If the drawbacks and flaws have cropped up since inception and structural defects inherited in the system of production making it spoiled system, the output/ product is bound to be imperfect and defective one, therefore, the defects as indicated or conceived of in paragraph 7 above are to be eradicated on administrative or judicial side, however, in both fairness and observance of principle of natural justice shall be necessary. The competent authority might refer the inquiry report, so made earlier, or look at the proposed inquiry or probe or proceeding to be conducted subsequently taking into consideration records and documents and fixing also specific date, time and place and allowing the beneficiary candidate to avail oral/personal hearing and to adduce evidences and further permission to examine or cross-examine the witnesses. The beneficiary candidate has to be heard so that truth may be arrived at and it could not be said at any stage that something was left from consideration or desired to be incorporated on the part of the beneficiary candidate. The opportunity of hearing to beneficiary candidate is neither farce, nor mandatory or directory, in every case but is most essential ingredient and legal requirement to be adopted to arrive at truth and to achieve finality and precision in the finding or declaration. The hearing of the beneficiary candidate is in order to bring perfection in the finding on the issue of appointments or selection or gains derived, by covering vital aspects and broad based parameters, and giving weightage on different parameters involved in inquiry or probe and in hearing before or after in reference to the defects depending upon the facts and circumstances. Sometimes the competent authority or inquiry officer may concentrate or contemplate much on the documents or records, sometimes on the oral or written evidences only. Sometimes more weightage over the statement of witnesses may be vital. However, all these shall depend upon the requirement of the case and on the wisdom of the competent authority. In order to ensure precision and fairness in the finding of the inquiry or probe, the beneficiary candidate as an affected party, is to be heard treating him to be an essential component of the inquiry or the declaration. Providing of opportunity of hearing to the beneficiary candidate in reference to the inquiry or probe or declaration may not be so casual, as the beneficiary candidate may drag on hearing unnecessarily. However, depending on the facts and circumstances in a particular case, even a written submission preferred at the choice of the beneficiary candidate may serve the purpose or may be treated as sufficient for observance of principle of natural justice. If by other than conventional mode, during adjudication by the Court/Tribunal while considering the pleadings of the parties, if the selection or appointment in question is proved or declared as defective then it shall be necessary to hear the affected party in reference to such declaration. If the declaration of the selection or appointment to be defective is not based on inquiry or probe, the beneficiary candidate being affected party may be heard even on subsequent stage, in any case, before passing termination order. In conspectus, the beneficiary candidate being an outcome of such selection, which has been noted to be defective or spoiled selection, on the basis of inquiry or probe acknowledged as such by the Court or Tribunal, shall have no legal right to remain in the employment and is bound to be ceased or ousted in any case but in accordance with law and the affected beneficiary person is either to be heard by associating him in reference to such inquiry or probe or declaration, so that the stand of affected party may be incorporated before taking the decision of ousting him by the competent authority."
"103. In view of the foregoing analysis and observations, now, it is clear when any selection/ recruitment or appointment to some post was made or benefits/ gains are procured illegally and it is noticed on the complaint or at subsequent stage that illegalities, irregularities, improprieties, procedural infirmities and deficiencies and defects have occurred, forgery or foul-play adopted or non observance of Act, rules, norms were made in process then the beneficiary candidate, who has become output and product of such defective and bad selection or outcome of spoiled system process shall have no right or claim to the post or salary or any consequential benefits in the service by virtue of such selection or appointment or gains in any form being illegal or void or non est and being violative of mandate of provisions of Articles 14 and 16 of Constitution, but before termination or dismissal of such persons or beneficiaries, a proper inquiry associating with such beneficiary candidates shall have to be made by providing them opportunity of hearing in consonance to the principle of natural justice. If at the instance of some complaint or at the instance of competent authority or of the State Government or employer, the proper inquiry or probe taking into consideration the facts, circumstances, records, evidences or witnesses has already been made by any of the competent authority and person being a beneficiary candidate has been associated in the said inquiry or probe or investigation and such inquiry has been made in consonance to the principle of natural justice then termination of beneficiary candidate in such circumstances shall not be said to be illegal and such beneficiary candidate is not to be given opportunity of hearing any more, but in the circumstances indicated above if the beneficiary candidate by virtue of being a product of a defective selection or process is dismissed or terminated and no inquiry was ever made as indicated above and such termination order if set aside on the ground of not providing of opportunity of hearing in consonance to the principle of natural justice, the Court at its pleasure may direct a fresh inquiry or probe to be made in accordance with law keeping in view the gravity of defects, charges, drawbacks, allegations involved in the said selection as narrated in paragraph (7) above inherited in the said selection or process or appointment or illegal gains and in order to eradicate defects and evils, which had cropped up or had insinuated from its inception. If the beneficiary candidate is heard in reference to the inquiry or probe or report by providing him adequate opportunity of hearing in consonance to the principle of natural justice before termination of his service then subsequent another opportunity of hearing shall not be necessary.
"104. In view of the foregoing analysis and observations, the legal propositions are summarised, when the selection or appointment or benefits/gains in any form procured by one individually or by many collectively on one or other drawbacks or grounds as mentioned above in paragraph-7 are found to be defective or noted as output of spoiled system then following steps are necessary to be observed :
(i) Keeping in view the facts and circumstances of the particular case and the nature of defects, deficiencies, drawbacks in the process, selection or appointment or in the matters of benefits/gains in any form derived, the Court may evolve any suitable mode and modalities for making inquiry or probe or investigation in order to arrive at truth.
(ii) The beneficiary candidate is entitled to opportunity of hearing in consonance to the principles of natural justice before termination of his service.
(iii) If there exists multiple deficiencies out of what have been narrated in the paragraph 7 above or defects are complicated and mixed or issues are intricate for instance, the matter involving bribery, financial irregularities, misuse of powers and offences under Prevention of Corruption Act or involving deep rooted conspiracy then at the command of the relevant court or at the instance of the State Government or competent authority the inquiry or probe or investigation could be made exhaustively, like, disciplinary proceedings as per applicable relevant rules in a particular case apart from examining and investigating other related documents, records, materials or persons relevant and necessary in the finalisatlon of controversion and scandal, but for that purpose text of allegations with documents, records, evidences relied upon, evidences and witnesses to be adduced, providing of opportunity of oral hearing, and opportunity to cross-examine the witnesses to the affected parties at fixed date, time and place and such inquiry or probe or investigation to be made in consonance to the principle of natural justice.
(iv) If the defects, deficiencies, irregularities etc. are apparent and not complicated consisting of one or more drawbacks as narrated in paragraph 7 above then only summary inquiry or probe or investigation unlike disciplinary inquiry in consonance to the principle of natural justice in respect of the allegations or defects could be made by examining and having documents, records, materials or persons and taking the responsibility of affected beneficiary party, providing opportunity of hearing to him in consonance to the principle of natural justice.
(v) Where defects, deficiencies, irregularities, fraud or forgery or admissions in a course or benefits/gains in any form, selections or appointments are referable to the verdict of the Hon'ble Judge or any institutions or institutional head, for instance High Court or Head of Department of the State Government or constitutional dignitaries, then the controversion or denial of existence of such documents by concerned author are sufficient to annul the benefits/gains in any form derived in selection or appointment by one or many beneficiary candidates and no opportunity of hearing or observance of principle of natural justice shall be necessary in those cases.
(vi) When the beneficiary candidate was already associated and heard by observing principle of natural justice in the inquiry or probe in respect of the selection or appointment or in respect of gains in any form and when the inquiry or probe was made suo motu or on general or specific complaint made on behalf of candidates participating in the selection in question or on the basis of preliminary inquiry conducted for and on behalf of the appointing authority or on the basis of audit or inspection report, the State Government or competent authority or employer thereafter has made itself or got conducted a detailed inquiry through C.B.I. or an independent agency or Vigilance department or Committee, taking into consideration all the facts, circumstances, records, evidences and witnesses and on the basis of finding arrived at out of such inquiry, and the selection in question is found to be defective on one or more out of above mentioned drawbacks/ grounds, then further opportunity of hearing to the beneficiary candidate before termination of service is not necessary to be given.
(vii) When for one or many of the drawbacks and grounds mentioned in above 'paragraph 7', the gains or selection or appointment is found defective and the termination of the service of the beneficiary candidate is set aside for not providing opportunity of hearing or for non-observance of principles of natural justice, in those circumstances reinstatement of beneficiary candidate in service with consequential benefits shall not be a usual phenomena.
(viii) Keeping in view the seriousness of defects and drawbacks occurred in the selection or appointment in question, the Court at its pleasure and in the interest of justice and in order to uphold the rule of law, may direct inquiry or probe to be made afresh, allowing the participation of the beneficiary candidate with a view to provide opportunity of hearing in consonance to the principles of natural justice and to take decision within a stipulated time and the Court at its pleasure may not allow the reinstatement of such beneficiary candidate being an output of defective selection till a fresh inquiry is conducted and decision is taken in consonance to the directions of the Court.
(ix) The above mentioned drawbacks or defect cropped up or inherited in the selection or appointment or insinuated from its inception could never be ignored, or overlooked or treated as redundant and could never automatically be said to be rectified or could not be dulcified on the reinstatement of the beneficiary candidate in service when the termination of such beneficiary candidate is set aside on the ground of principle of natural justice.
(x) For reinstatement it is not necessary to show sympathy to the beneficiary candidate for his bona fide, or for claim of no fault on his part or for his innocence.
(xi) When the selection or appointment is found to be defective for one or on many grounds or drawbacks mentioned in 'paragraph 7' above, the beneficiary candidate is bound to be brought under penal action even if the misdeeds was not directly attributable on his part and the effect of the setting aside the selection in question would mean and connote that the selectee/beneficiary candidate shall have no right to the post or to the salary and the salary and perks received by him by virtue of such illegal and unauthorised appointment is normally to be repaid to the State Government or the employer unless the Court for reasons to be recorded does not pass any order for withholding of repayment in a particular case.
(xii) The Court in the interest of justice and to uphold the dignity of rule of law and to maintain fairness in administration, may indicate or may give liberty to the State Government or employer to proceed to take proper action in accordance with law against those authorities or officers, who were instrumental or involved in such defective and scandalous selection or appointment or illegally extending benefits/ gains in any form, so that wrong doers and persons involved might not be ignored for their misdeeds and misconduct."
14. While testing the legality of the order dated 6.1.2001, I find that in view of the above observations the order dated 6.1.2001 is not sustainable on the first principle alone when the petitioner was not afforded opportunity of hearing and to explain by way of reply. In these circumstances, the order dated 6.1.2001 is to be set aside. Now the question arises whether the petitioner could be reinstated immediately in the garb of background when according to the State Government and the respondents, the petitioner's father was illegally appointed and had no right for appointment and the dependants of the illegally appointed person cannot take the benefit of the compassionate appointment. This aspect is also to be inquired into.
15. In the light of this the Joint Director of Education, Varanasl Region, Varanasi is directed to inquire into the matter in respect of the initial appointment of the petitioner's father and also whether vacancy was in existence in the college in question, proper advertisement was made, proper selection was made, the selection committee was duly constituted, whether approval of appointment and financial approval was given or not and in respect of the finding arrived at about the genuinity of the appointment of the petitioner's father, a fresh order shall be passed for the petitioner. For this purpose the aforesaid indicated officer shall serve the charge-sheet along with documents relied upon and shall obtain the reply of the petitioner and may also take the statements of the principal of the college including the then D.I.O.S., the present D.I.O.S., the authorities of the education department, judicial department, police department, revenue department and the petitioner shall also be provided the opportunity of oral hearing and to adduce evidence and to cross-examine the witnesses and in consonance of principle of natural justice at fixed date, time and place the inquiry would be conducted and finding would be arrived at and on the basis of such finding arrived at by the above officer appointed by this Court, the D.I.O.S., Varanasi shall pass a decision subsequently. The inquiry shall be made within three months from the date of production of the certified copy of this order. Such indicated officer shall be at liberty to be mentioned directly to this Court. The continuance and retention of petitioner in service on compassionate ground and the reinstatement and the subsequent benefits shall depend upon the subsequent order passed by the above indicated officer. Till then the petitioner shall not be reinstated and shall not be entitled to any salary.
16. In view of the above observations, writ petition is disposed of.
17. Copy of this order shall be given free of cost to Sri S.S. Sharma, learned standing counsel who will convey to the aforesaid officer and the Registrar General shall make available photostat copies of all the documents in the present petition to the aforesaid officer through Sri S.S. Sharma, standing counsel. It is indicated that the observations made in this order shall not affect the independent finding to be arrived at by the aforesaid officer and the working and functioning of the respondent No. 6.