Heard Sri P.N. Saxena, learned Senior Advocate, assisted by Sri A.K. Dubey, Advocate on behalf of the petitioners and leaned Standing Counsel for the State-respondents in all the writ petitions.
These writ petitions have been filed for quashing the order dated 26th July, 1997 passed by the Director, Animal Husbandry, U.P. Government at Lucknow as also for a writ of mandamus directing the respondents to pay salary to the petitioners from the date of their appointment i.e. 30th June, 1997.
The basic facts relevant for decision of the dispute, as on record in these three writ petitions are more or less identical, and legal aspects involved are also identical. These three writ petitions have been tagged and are being decided by this common judgement.
Facts in short as borne out from the record are as follows:
The Director, Animal Husbandry, U.P. Government at Lucknow issued a circular dated 6/7th June, 1997 requiring the Additional Directors, Animal Husbandry through out the State, to fill in the existing vacancies of reserve category in Groups C and D in the respective offices. It was specifically provided that the appointments shall be made in accordance with service rules applicable and advertisement of the vacancies shall be made in newspapers in accordance with the rules applicable. The circular has been enclosed as Annexure-1 to the writ petition as well as Annexure-1 to the counter affidavit filed on behalf of the State.
According to the petitioners, in pursuance to the order of the Director so issued, the Deputy Director, Animal Husbandry, Azamgarh Region, Azamgarh, namely, Dr. Ram Lal published an advertisement, for appointment on Group C posts in Hindi newspaper Dainik Deval.
Petitioners applied in pursuance thereof. Interview took place on 27th June, 1997. Petitioners are stated to have been selected and issued appointment letters on 30th June, 1997. According to the petitioners in terms of the appointment letters so issued, they joined on their respective posts on 25th July, 1997 (reference paragraph-10 of the present writ petition no. 28560 of 1997).
It is then stated that all of sudden on 26th July, 1997, i.e. on the next day, the impugned order has been passed by the Director, Animal Husbandry whereby the appointments made have been cancelled.
According to the petitioners, the impugned order has been passed without notice and opportunity of hearing to the petitioner and therefore, unsustainable. For the purpose reliance has been placed upon the judgment of the Apex Court in the case of Basudeo Tiwari vs. Sidokanhu University reported in AIR 1998 SC (0) 3261 and in the case of Shrawan Kumar Jha vs. State of Bihar reported in AIR 1991 SC(0) 309.
It is further submitted on behalf of the petitioners that in the matter of identical appointment made by the same Deputy Director of Education, a judgment has been passed by a learned Single Judge of this Court as early as on 22nd January, 1998 in Civil Misc. Writ Petition No. 22794 of 1997 (Vinod Kumar and others vs. State of U.P. & others) holding therein that appointments were per se illegal, appointment orders issued by the Deputy Director of Animal Husbandry, namely, Dr. Ram Lal were in defiance to the directions issued by the Superior Authority. It has been further held that in the facts of the case, no notice or opportunity of hearing was required to be afforded. However, another Single Judge in the matter of similar appointments made by the same Deputy Director of Education, in writ petition no. 5216 of 1997 (S/S) (Satyendra Nath Singh & others vs. State of U.P. & others) along with connected writ petitions vide judgment dated 8th July, 2002, has held that in absence of opportunity of hearing, the order cancelling the appointment cannot be sustained. He, therefore, submits that if there is a conflict in the two judgments, the matter may be referred to a Larger Bench.
Learned Standing Counsel in reply points out that the selections had been made in clear defiance to the statutory rules as also in violation of the directions contained in the circular dated 6/7th June, 1997. The advertisement was published in a newspaper, which had inadequate circulation. Such advertisement is therefore, no advertisement in the eyes of law. The appointments made being in violation of Articles 14 and 16 of the Constitution of India are a nullity. He further submits that in the appointment letters, it was specifically mentioned that the appointment was temporary and could be terminated at any point of time without disclosing any reasons.
He points out that a categorically finding has been recorded by the learned Single Judge in his judgment dated 22nd January, 1998 in Civil Misc. Writ Petition No. 22794 of 1997 (Vinod Kumar and others vs. State of U.P. & others) after considering material on record that the Deputy Director, Dr. Ram Lal had disobeyed the orders of the superior authority in issuing the appointment letters as also in permitting the joining of the candidates. This judgment of the learned Single Judge dated 22nd January, 1998 passed in Civil Misc. Writ Petition No. 22794 of 1997 stands affirmed with the dismissal of the Special Appeal No. 144 of 1998 (Vinod Kumar & 20 others vs. State of U.P. & others) by a Division Bench of this Court as per its vide reasoned judgment dated 12th November, 2002.
I have considered the submissions made by the learned counsel for the parties and have gone through the records of the writ petitions.
At the very outset this Court may examine the alleged conflict in the judgment dated 22nd January, 1998 and the judgment of the learned Single Judge, which has been referred to by the learned counsel for the petitioners dated 8th July, 2002 passed in writ petition no. 5216 of 1997 (S/S) (Satyendra Nath Singh & others vs. State of U.P. & others) along with connected writ petitions. This Court has carefully gone through the judgment dated 8th July, 2002 and finds that it makes no mention of the earlier judgment of the learned Single Judge dated 22nd January, 1998 passed in Civil Misc. Writ Petition No. 22794 of 1997 in respect of same selections. The judgment dated 22nd January, 1998 has since been affirmed by a Division Bench of this Court, while dismissing the Special Appeal No. 144 of 1998 (Vinod Kumar & 20 others vs. State of U.P. & others) by means of reasoned judgment dated 12th November, 2002. A copy of the Division Bench judgment is already on record of the present writ petition.
This Court may record that non-consideration of the earlier judgment of the learned Single Judge, which has since been affirmed by the Division Bench as noticed above, while deciding the writ petition no. 5216 of 1997 (S/S), leads to this Court to hold that law laid down in the judgment dated 8th July, 2002 is not the correct law.
This Court may also consider the basic issue which has been raised on behalf of the petitioners, namely, the appointment offered to the petitioners has been cancelled without notice and opportunity of hearing to them, and therefore, the order of cancellation is bad.
This Court may record that the appointment in government service has to be in conformity with Articles 14 and 16 of the Constitution of India. The Apex Court in the case of Secretary, State of Karnataka vs. Uma Devi reported in (2006) 4 SCC 1 has explained that before any appointment in government service can be made, the vacancy has to be advertised for inviting application from the public at large having qualifications for the post. Any selections made contrary to the advertisement or without advertisement would be per se arbitrary and violative of Articles 14 and 16 of the Constitution of India. The Apex Court in paragraph-43 in the case of Secretary, State of Karnataka (Supra) has further held 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. It has been further held that High Court shall not uphold an appointment made in violation of Articles 14 and 16 of the Constitutions of India.
The Apex Court in the case of Union Public Service Commission vs. Girish Jayanti Lal Vaghela reported in (2006) 2 SCC 482 has held that 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.
What advertisement means has been explained by a Full Bench of this Court in the case of Kumari Radha Raizada and etc.etc. vs. Committee of Management, Vidyawati Darbari Girls Intermediate College & others etc. etc., reported in 1994 ALL.L.J. 1077, it has laid down that the vacancy even in respect of temporary appointment is required to be notified at least in two newspapers having adequate circulation.
Judged in the aforesaid legal background, this Court finds that advertisement in question had been published in only one newspaper, namely, Dainik Deval, accordingly to the petitioners themselves. The paper has circulation within the local limits of Azamgarh only. This Court has, therefore, no hesitation to record that advertisement in question is not in conformity with the provisions of Articles 14 and 16 of the Constitution of India, more so when the appointments were to be made on posts in a department of the State Government. The manner in which Dr. Ram Lal, Deputy Director had offered appointments despite there being direction of the Director not offer such appointment, has specifically been dealt with in detail by the Single Judge in his judgment dated 22nd January, 1998 referred to above and it is not necessary for this Court to repeat the same again.
I have no hesitation to hold that not only the appointment of the petitioners was in violation of Articles 14 and 16 of the Constitutions of India, it was also in teeth of the specific directions issued by the superior authority.
It has repeatedly been held that principles of natural justice are not straight jacket formula. In the facts of the case only one conclusion is possible i.e. the appointment of the petitioners was per se illegal and therefore, affording opportunity of hearing to the petitioners as has been prayed for would have been an empty formality.
In Punjab National Bank and others. Vs. Manjeet Singh and another (2006) 8 SCC 647, this Court opined:-
"The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The Court will not insist on compliance with the principles on natural justice in view of the situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principles of natural justice".
Similarly, in Aligarh Muslim University and others Vs. Mansoor Ali Khan; (2000) 7 SCC 529, it has been held that opportunity of hearing is not an empty formality.
In view of the aforesaid, the judgments relied upon by the learned counsel for the petitioners are clearly distinguishable.
For the reasons, which have been recorded in the judgment of learned Single Judge dated 22nd January, 1998, which has since been affirmed by a Division Bench while dismissing the Special Appeal No. 144 of 1998 (Vinod Kumar & 20 others vs. State of U.P. & others) by means of reasoned judgment dated 12th November, 2002, as also for what has been recorded above, this Court in the facts of the present case, finds no reason to interfere with the order impugned.
All these three writ petitions lack merit and are, accordingly, dismissed.
(Arun Tandon, J.) Order Date :- 28.9.2012 Sushil/-
Case :- WRIT - A No. - 28560 of 1997 Petitioner :- Yogendra & Another Respondent :- Director Of Animal Husbandry U.P. & Others Petitioner Counsel :- Prakash Padia,A.K.Dubey,Dr.R.G.Padia,P.N.Saxena,S.M.Tripathi Respondent Counsel :- S.C.
Hon'ble Arun Tandon,J.
Dismissed.
For order see order of date passed on the separate sheets.
(Arun Tandon, J.) Order Date :- 28.9.2012 Sushil/-