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2003 DIGILAW 397 (JK)

Mohan Lal Bhat v. Hotel Corp. Of India

2003-12-12

NISAR AHMAD KAKRU

body2003
Order No. CLVH/MO/1877 dated 31-08-1995 forming annexure A to the writ petition entitles the petitioner to officiate as Head Kitchen Steward on temporary basis till post is filled up on permanent basis or other alternative arrangement is made. The said order became the subject matter of writ petition SWP 1433/2000 inter alia on the ground that adjustment is made on a non existent post by an incompetent authority without following procedure established by law. The challenge being well founded, the respondents were constrained to issue order dated 05-03-2000 which has the effect of rescinding the officiating arrangement. 2. The petitioner being aggrieved, consequently this writ petition on the sole ground that order could not have been revoked without following principles of natural justice. To being home the point reliance is placed by LC for the petitioner on the case titled Nayagarh Cooperative Central Bank Ltd. and another versus Narayan Rath and another reported in AIR(1977) 3 SC page 576. Perusal of the judgement reveals that the appointment of the beneficiary was approved against an available vacancy in a meeting chaired by the Registrar but written approval was not communicated. It was a case where appointment was allowed to be acted upon by the competent authority from May, 1955 to May, 1968. Here is a case where assignment of a charge on a higher post is entrusted notwithstanding the fact that the post does not exist. It goes without saying that law laid down by the apex court being binding upon this court has to apply provided facts of the case are similar to the one cited as a precedent. Ex facie, facts are quite dissimilar, obviously the judgement has no application. 3. Much emphasis was laid by LC for the petitioner on non observance of principles of natural justice. No doubt in certain situations violation of principles of natural justice may be in itself sufficient to entitle the aggrieved person to the relief but such situations cannot be identified because compliance of the doctrine depends upon the facts and circumstances of each case. Testing the facts of the case on hand, it has to be borne in mind that no order of promotion has been issued in favour of the petitioner. It is amazing how charge can be assigned when post is not available. Such adjustment cannot be conceived of and rules do not permit such action. Testing the facts of the case on hand, it has to be borne in mind that no order of promotion has been issued in favour of the petitioner. It is amazing how charge can be assigned when post is not available. Such adjustment cannot be conceived of and rules do not permit such action. Moreso, the assignment of charge was made on the assumption that there is a clear vacancy which is required to be filled up on regular basis but fact remains that there is no vacancy of head kitchen steward. Thus the appointment in question is violative of statutory provisions which at the same time is made by an officer lacking competence. It is apposite to mention here that the parties are not at variance about the factum of non availability of post yet the petitioner seeks his continuation on the ground of his manning the post for last 1/2 a decade. The contention is bereft of any justification in view of the fact that the order itself provides petitioners continuation till post is filled up but eventuality of filling up of the post is totally misconceived because admittedly the post does not exist, therefore, nothing is required to be filled up. 4. Being manifest that the assignment of charge has been made in violation of statute the respondents have lost no time to take cognizance of the violation by making reference to the CBI for investigation into the conduct of the petitioner. True it is that order assigning the charge stands revoked without giving show cause notice but what is to be seen is that if notice was given, what would have been the result which aspect of the matter needs to be appreciated in the light of the fact that the petitioner does not dispute the non existence of the post. That being so if the order impugned is quashed because of non adherence to the rules of natural justice, it will revive an illegal order. In my opinion when such is the fall out, refusal to exercise discretionary power under article 226 of the Constitution of India is not only appropriate but necessary as well to attain ends of justice. 5. In my opinion when such is the fall out, refusal to exercise discretionary power under article 226 of the Constitution of India is not only appropriate but necessary as well to attain ends of justice. 5. That apart, by granting opportunity of hearing to the petitioner the situation cannot at all improve to the advantage of the petitioner, for, continuation in absence of the higher post amounts to violation of statute. Thus on undisputed facts, the only one conclusion that emerges is that appointment is bad in law. Obviously no purpose will be served by quashing the order because conclusion has to remain unaltered. How should court deal with a situation when there is no possibility of change in the conclusion, guidance is readily available from the judgement of the apex court in M.C. Mehta versus Union of India reported in AIR (1999) SC 2582 and 2589 which squarely applies to the case on hand. Para 22 may be noticed: "22. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice." 6. In the aforementioned backdrop, this writ petition fails and is dismissed. No order as to costs.