ORDER C.K. Prasad, J. By this writ petition filed under Articles 226 and 227 of the Constitution of India, petitioner prays for quashing of the order dated 1-7-1996 (Annexure P-15 whereby his service has been terminated w.e.f. 1-7-1996. Shorn of unnecessary details, facts giving rise to the present writ petition are that by order dated 30-6-1995 petitioner was appointed as Moharrir on daily wages temporarily at the rate fixed by the Collector. Petitioner was appointed by the Chairman of the Special Area Development Authority, Chitrakoot. The State Govt, in exercise of the powers conferred u/s 76(1) of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 dissolved various Special Area Development Authorities including the Special Area Development Authority (for short SADA), Chitrakoot, where the petitioner was appointed by order of the Chairman dated 30-7-1995. Thus the petitioner has been appointed by the Chairman of the SADA, Chitrakoot on 30-6-1995 whereas prior to the said date, the State Govt, had already directed, for dissolution of the Authority. 2-A. Mr. Aditya Adhikari appearing on behalf of the petitioner submits that notwithstanding the fact that the petitioner was appointed by order of the Chairman of the SADA, at the time when the SADA stood dissolved, still the respondents were under an obligation to give notice to the petitioner to meet the requirement of principle of natural justice. He further submits that the perusal of the impugned order itself demonstrates that before terminating the service of the petitioner, an enquiry was held, but in the same no opportunity was given to the petitioner and this vitiates the impugned order. In support of his submission, Shri Adhikari has placed reliance on a judgment of the Supreme Court in case of Shrawan Kumar Jha and others Vs. State of Bihar and others, . He has drawn my attention to the following passage of the said judgment - By an order dated November 2, 1988 the Deputy Development Commissioner cancelled the appointment of the appellants. Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents has contended that the appointments have been cancelled because the District Superintendent of Education had no authority to make the appointments, it was a device of by-passing the reservations and that the conditions which are part of the appointment order were not complied with. Mr. U.R. Lalit and Mr.
Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents has contended that the appointments have been cancelled because the District Superintendent of Education had no authority to make the appointments, it was a device of by-passing the reservations and that the conditions which are part of the appointment order were not complied with. Mr. U.R. Lalit and Mr. A.K. Ganguli, learned Senior Advocates, appearing for the appellants have controverted these allegations and have stated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground. As suggested by the learned Solicitor General, we direct that the Secretary (Education), Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined their schools and worked, they shall be entitled to their salary for such period. To buttress his submission, Shri Adhikari has further drawn my attention to the judgment of the Supreme Court in case of Basudeo Tiwary Vs. Sido Kanhu University and Others, and my attention has been drawn to the paragraph-12 of the said judgment which reads as follows-- The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or Regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to the Act, rules, statutes and Regulations or otherwise.
The condition precedent for exercise of this power is that an appointment had been made contrary to the Act, rules, statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or Regulations etc., a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case, such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessary enquiry will have to be held and in holding such an enquiry, the person whose appointment is under enquiry will have to be issued a notice. If notices not given to him, then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and conclusion which drawn in his absence, such a condition would not be just, fair or an event, he has to hold that in the provision, there is implied requirement of hearing for the purpose of arriving at a conclusion that an appointment shall be made to the Act, statute, rule or Regulation etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how section 35(3) in this case will have to be read. Mr. S. Nagu, however, appearing on behalf of respondents No. 2 and 3 submits that as the appointment of the petitioner was by a person who was absolutely incompetent to make appointment, the appointment of the petitioner is honest in the eye of law and as such the principle of natural justice does not demand giving any notice or opportunity to the petitioner. Having appreciated the rival submission, I find substance in the submission of Shri Nagu. Petitioner was appointed by order dated 30-6-1995 temporarily as daily wage employee at the rate fixed by the Collector. Aforesaid appointment has been made by the President of Special Area Development Authority, Chitrakoot.
Having appreciated the rival submission, I find substance in the submission of Shri Nagu. Petitioner was appointed by order dated 30-6-1995 temporarily as daily wage employee at the rate fixed by the Collector. Aforesaid appointment has been made by the President of Special Area Development Authority, Chitrakoot. However, before the said date i.e., 22-6-1999, the State Government, in exercise of its power u/s 76(1) of the M.P. Nagar Tatha Gram Nivesh Adhiniyam 1973, dissolved the Special Area Development, Sagar. As such, the appointment of the petitioner is by a person who did not held the office of President. Appointment of the petitioner being void ab- initio, no notice or opportunity was required to be given before terminating his service. Reverting to the.authorities of the Supreme Court in case of Shravan Kumar Jha (supra) I am of the opinion that in the aforesaid case, the Supreme Court did not lay as a proposition of law that even in a case in which, appointment is void ab-initio, the principle of natural justice requires giving notice or opportunity to the employee before terminating the service. In fact, the decision of Supreme Court in Shravan Kumar Jha came up for consideration before the Supreme Court in case of State of M.P. and Others Vs. Shyama Pardhi etc. etc., , in which it has been held as follows -- It is now an admitted fact across the Bar that the respondents had not possessed the prerequisite qualification, namely, 10+2 with physics. Chemistry and Biology as subjects. The Rules specifically provide that qualifications as a condition for appointment to the post of ANM. Since prescribed qualifications had not been satisfied, the initial selection to undergo training is per se illegal. Later appointment thereof are in violation of the statutory rules. The Tribunal, therefore, was not right in directing the reinstatement of the respondents. The question of violation of the principle of natural justice does not arise. The ratio of Shravan Kumar Jha v. State of Bihar strongly relied on, has no application to the facts of this case. That was a case where the appellants possessed initial qualifications, but they did not undergo the training. Since the appointment was set aside on the ground of want of training, this Court interfered with, directed the Government to reinstate them into service and further directed them to send the appellants therein for training.
That was a case where the appellants possessed initial qualifications, but they did not undergo the training. Since the appointment was set aside on the ground of want of training, this Court interfered with, directed the Government to reinstate them into service and further directed them to send the appellants therein for training. As the appointment of petitioner is void ab-initio having been made by a person thoroughly incompetent to do the same, principle of natural justice is not remotely attracted in the facts and circumstances of the case. Reliance of the petitioner in case of Basudeo Tiwari (supra) is also misconceived. In the said case, question was as to whether in a case where appointment is sought to be terminated having been made contrary to the provision of the Act, statutes, rules or Regulation, the employee is required to be heard. While considering the statutory provision, the Supreme Court held that there is implied requirement of hearing. Here, in the present case, petitioner was appointed by an incompetent person and as such, his appointment is void. That was not the situation in Basudev Tiwari's case (supra). Principle of natural justice is not an unruly horse. I am of the opinion that when appointment is void ab-initio, the principle of natural justice is not even remotely attracted. Having found no substance in the only submission made by Shri Adhikari, I do not find any merit in the writ petition and it is accordingly dismissed. No cost: Final Result : Dismissed