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2005 DIGILAW 424 (GAU)

Jumno Padung v. State of Arunachal Pradesh

2005-06-01

H.N.SARMA

body2005
JUDGMENT H.N. Sarma, J. 1. Heard Mr. C. Barnah, learned Senior Counsel assisted by Mr. R.K. Dutta, learned Counsel appearing for the Petitioners and also heard Mr. B.L. Singh, the learned Senior Govt. Advocate appearing on behalf of the State Respondents. 2. In pursuance to an advertisement No. ED. 2/ATP/231/95 dated 3.11.1997, issued by the Director of School Education, Government of Arunachal Pradesh, Naharlagun, inviting application from the qualified candidates for filling up the certain posts of Trained Graduate Teachers (TGT) in the subject of Social Studies, the Petitioners who were duly qualified to hold such posts submitted their application offering their candidatures along with some other candidates. A selection test was held by the authority for selecting the candidates for appointment in the aforesaid pests and after such selection, a merit list was prepared. In the said select/merit list, the names of the Petitioners and the private Respondent Nos. 3 to 21 duly appeared. 3. The names of the private Respondent Nos. 3 to 21 appeared above the names of the Petitioners in striatum of the said select/merit list. Pursuant to the said selection, the Petitioners were offered appointments vide orders No. ED-2 420/APT/99-2000 dated 01.7.1999 and they were appointed as Junior teachers in the subject of Social Studies in different Govt. Schools of the State of Arunachal Pradesh. While the Petitioners were serving in the said capacity, the private Respondents approached this Court by filing W.P. (C) No. 94 (AP) 2000 and W.P. (C) 162 (AP) 2000, alleging inter alia, that their names having figured above the present writ Petitioners in the select/merit list, they ought to have been appointed earlier to the Petitioners. This Court vide judgment and order dated 17.8.2001 after hearing the learned Counsel for the Petitioners and the learned Govt. Advocate as well as considering the ratio of several decisions by the Apex Court, inter alia, held as follows: In view of the above position, I direct the State Respondents, contempt authority to afford appointment to the writ Petitioners herein the posts of Junior Teachers (TGT) except Petitioner No. 6, Ms. Otok Tamuk in W.P. (C) No. 94 (AP) 2000, by maintaining the same select/merit list within a period of one month from the date of receipt of this judgment and order. 4. Otok Tamuk in W.P. (C) No. 94 (AP) 2000, by maintaining the same select/merit list within a period of one month from the date of receipt of this judgment and order. 4. The aforesaid order was challenged by the State in Writ Appeal No. 481 of 2001 and the writ appellate Court vide order dated 7.12.2001, dismissed the said writ appeal on the date of admission itself, affining the judgment passed by the learned Single Judge. 5. It is pertinent to mention here that in the a foresaid two writ petitions, namely, in W.P. (C) 94 (AP) 2000 and W.P. (C) 162 (AP) 2000, the writ Petitioners (arising out of the aforesaid writ petitions) were not impleaded as party Respondents. Although, they were impleaded as proforma Respondents in Writ Appeal No. 481 of 2001 filed by the state Respondents, the said appeal was dismissed on the date of admission itself, on 7.12.2001 and no notice of appeal was issued to the Petitioners before dismissal of the same. 6. The Director of School Education, Respondent No. 2, thereafter relying the judgment and order dated 17.8.2001 passed in W.P. (C) 162 (AP) 2000 and W.P. (C) (AP) affirmed in the writ appeal No. 481 of terminated the services of the Petitioners vide order No. ED2/CC/TT-TY/2001 dated 26.4.2002 by the Respondent No. 2 and similar orders were passed in respect of all the Petitioners. For the first time, coming to know about passing of the order by the High Court in the aforesaid two writ petitions and in a writ appeal from the impugned orders, the Petitioners filed a review application being R.P. No. 31 of 2002 in W.A. No. 481 of 2001. The said review application was disposed of on 29.5.2002, with the following order by the Hon'ble Division Bench: 29.05.2002 No review petition lies on behalf of the present Petitioners. We may also observe that the review Petitioners may file a Writ Petition. The review petition is dismissed. 7. The said review application was disposed of on 29.5.2002, with the following order by the Hon'ble Division Bench: 29.05.2002 No review petition lies on behalf of the present Petitioners. We may also observe that the review Petitioners may file a Writ Petition. The review petition is dismissed. 7. In pursuance to the liberty so given by the writ appellate Court, the present petition has been filed by the Petitioners challenging that their order of termination dated 26.4.2002, on the ground inter alia that the impugned termination orders having been passed in pursuance to the order passed by the Hon'ble High Court in W.P. (C) 94 (AP) 2000 and W.P. (C) 162 (AP) 2000 decided in the absence of the Petitioners even without impleading the Petitioners, the same are violative of the basic principles of natural justice and fairplay. That apart, the impugned orders dated 26.4.2002 also having been passed without giving any opportunity of being heard or without issuing any show cause to the Petitioners is also violative of the basic principles of natural justice. 8. It is further alleged by the Petitioners that they possessed the necessary essential qualifications in consonance with the requirement of the Recruitment Rule, 1973 to Class III (Non-Gazetted) Teachers posts in the Directorate of Education, Arunachal Pradesh Administration by acquiring B.Ed. qualifications and the private Respondents not having such qualifications, the appointment of the Petitioners vide order dated 1.7.1999 cannot be faulted with, rather it is in consonance with the said statutory Rules and the private Respondents not having possessed such qualifications to hold the posts cannot have a march over the Petitioners. 9. An affidavit-in-opposition has also been filed by the State Respondents wherein the aforesaid facts regarding filing the earlier writ petitions by the private Respondents for cancellation of the appointment of the Petitioners, pursuant to the orders passed there in are not disputed and it is also not disputed that no notices were issued to the Petitioners before cancellation of their appointments and that the Petitioner were not even impleaded as party in the earlier writ petitions. 10. 10. It is the case of the State Respondents that the cancellation of appointments of the Petitioners were made since the rights of the Petitioners of W.P. (C) 94 (AP) 2000 and W.P. (C) 162 (AP) 2000 were superseded by the Hon'ble High Court and fresh appointments order were issued strictly in compliance with the seriatum in the select/merit list. Regarding not having the essential qualifications by the private Respondents, the State Respondents have stated in their affidavit-opposition that with a view to enable the untrained Arunachalee candidates their cases had to be considered for appointment as there are very small numbers of candidates with B.Ed. Degree in the State, a relaxation was made in the advertisement dated 3.11.1997 to the effect. However, in the said affidavit-in-opposition, it has not been stated that pursuant to such decision, the provisions contained in the statutoiy Rules has been amended incorporating such relaxation. 11. Mr. C. Baruah, learned Senior Counsel for the Petitioners referring to the various averments made in the writ petition as well as the documents annexed thereto has submitted that in the instant case, the principle of natural justice is given a complete go byway of by cancelling the impugned orders of termination dated 26.4.2002 without serving any prior notice. It has also been submitted that the Petitioners having possessed the essential qualifications in terms of the statutory Rules to hold the posts of Trained Graduate Teachers (TGT), they are entitled to be appointed in preference to Ors. including the private Respondent Nos. 3 to 21, who do not hold such qualifications. 12. Mr. B.L. Singh, learned Senior Govt. Advocate, on the one hand, submitted that pursuant to the interim order passed by this Court on 24.6.2002, the Petitioners are continuing in their services as TGT and on the other hand, the private Respondents who were appointed by the Director of School Education in terms of the order passed by this Court in earlier in Civil Rules are also continuing in their service. 13. It is stated at the Bar that the private Respondents have been adjusted against the subsequent vacancies that arose in the Department whereas the Petitioners are continuing in their posts w.e.f. 01.7.1999 and the Petitioners are also getting their due increments and other service benefits. Mr. 13. It is stated at the Bar that the private Respondents have been adjusted against the subsequent vacancies that arose in the Department whereas the Petitioners are continuing in their posts w.e.f. 01.7.1999 and the Petitioners are also getting their due increments and other service benefits. Mr. B.L. Singh has further submitted that the names of the private Respondents having been placed above the Petitioners in the merit/select list and in view of the order passed by the Hon'ble High Court, the private Respondents were entitled to be appointed and in order to accommodate those private Respondents, the services of the Petitioners were terminated. However, Mr. B.L. Singh, in his usual fairness does not deny that, in such cases, the principle of natural justice is required to be followed before termination of the services of the Petitioners, but that has not been done in the instant case. 14. I have considered the rival submissions made by the parties and also perused the impugned termination orders including the documents available on record as well as the averments made in the affidavit-in-opposition. Certain facts are not disputed in the instant' case and these undisputed facts are that the Petitioners possesses the essential qualifications for being appointed as TGT in terms of the statutory Rules, that in the merit/select list, the names of the Petitioners find below those of the private Respondents, the private Respondents do not possess B.Ed. degree, which is an essential qualification in terms of the Recruitment Rules, that the Petitioners were not impleaded as party in the earlier writ petitions and although they were impleaded as proforma Respondents in the WA No. 481 of 2001, the said appeal was dismissed on the date itself without serving any notice upon them, that in the review application No. RP-31/2002 filed by the Petitioners, the Hon'ble Division Beach allowed the Petitioners to approach by a fresh writ, and finally, both the private Respondents as well as the Petitioners now serving as TGT under the Department of Education in the State of Arunachal Pradesh. 15. In the premises of the undisputed facts it is now to be decided as to whether the impugned order of termination of services of the Petitioners dated 26.4.2002 are sustainable in law or not. 15. In the premises of the undisputed facts it is now to be decided as to whether the impugned order of termination of services of the Petitioners dated 26.4.2002 are sustainable in law or not. In terms of the various judicial pronouncements, it is no longer res integra that before cancelling an appointment order pursuant to an order of the Court, such person should be impleaded as a party in such proceeding and no order directing to cancell such regular appointment be made without such impleadment. We may readily refer to the decision of the Apex Court in a Case of A.M.S. Sushanth and Ors. v. M. Sujatha and Ors. reported in (2000) 10 SCC 197 , wherein the Apex Court has inter alia held that the principles of natural justice demanded that any person who was going to be adversely affected by the order should have had an opportunity of being heard. Again the Apex Court took the similar view in the case of Jaswant Singh and Ors. v. State of M.P. and Ors. reported in (2002) 9 SCC 700 , wherein in Para-7, the Apex Court held as follows: The Appellants having been appointed pursuant to the order of the Panchayat and having been continued as LDC since February, 1987, no order under Sub-section (1) of the Section 83 of the Adhiniyam could have been passed by the Collector without affording the opportunity of hearing to thein. Admittedly, the opportunity of hearing has not been given. The impugned order of cancellation, therefore, stands vitiated. We therefore, set aside the order of the High Court as well as the order of cancellation passed by the Collector. 16. Admittedly, the Petitioners were necessary party in the earlier proceedings. The effect of non joinder of such necessary party in a proceeding wherein their appointments were cancelled come up for consideration before the Apex Court in the case of J. Jose Dhanapaul v. S. Thomas and Ors. reported in (1996) 3 SCC 587 . At para 4 of the said judgment, the Apex Court held as follows: It is not in dispute that the Appellant was not a party to the impugned order dated 15.6.1993 made in OA No. 2199 of 1992 by the Tamil Nadu Administrative Tribunal at Madras. Without being impleaded as a party, appointment of Thomas was annulled by the impugned order. Without being impleaded as a party, appointment of Thomas was annulled by the impugned order. The Tribunal therefore, has committed grave error of law in upsetting his appointment when he was not made a party. The impugned order is set aside as regards the Appellant. Similar view was expressed by the Apex Court in the Case of S. Jaffar Sahib v. Secretary, A.P.P.S.C. and Ors. reported in 1996 (2) SCC 753. At para 4 of the said judgment, the Apex Court lias inter alia held as follows: Then again there is an additional hurdle on the part of the Appellant, namely, affected persons are not made parties to the proceedings. It is too well settled that without impleading a person as a party whose rights would be affected, no court/tribunal can pass any order against him.... 17. It is, no doubt, true that neither the writ Court nor the writ appellate Court in earher proceedings, directed to cancel the appointment orders of the Petitioners in order to accommodate the private Respondents. The impugned termination orders dated 26.4.2002 as well as the stand of the State Government is that the said cancellation orders of appointment of the Petitioners were made in terms of the aforesaid orders passed by this Court. 18. In that view of the matter it cannot be said that the principles of natural justice was followed in this case before issuing the impugned termination orders. The Director of School Education, Respondent No. 2 also before issuing the impugned termination orders dated 26.4.2002 did not issue any show cause notices to the Petitioners to show cause as to why the appointments of the writ Petitioners should no be cancelled/terminated in view of the order passed by this Court in W.P. (C) 162 (AP) 2000 and W.P. (C) 94 (AP) 2000, affirmed in W.A. No. 481 of 2001. Had the Petitioners been provided with such opportunities, certainly the Petitioners would have disclosed the reasons regarding their entitlement to continue with their orders of appointments, but that has not been done in the instant case. 19. Had the Petitioners been provided with such opportunities, certainly the Petitioners would have disclosed the reasons regarding their entitlement to continue with their orders of appointments, but that has not been done in the instant case. 19. Upon discussions made herein above, this Court finds that the impugned orders of termination dated 26.4.2002 terminating the respective appointment of the Petitioners as TGT is vitiated for non observance of the basic principles of Natural Justice and fairplay in action and the authority committed an error apparent on the face of the record in the decision making process while taking decision to terminate the services of the Petitioners, without providing any opportunity of hearing to the Petitioners. 20. In view of the aforesaid discussions, I find that the impugned orders of termination dated 26.4.2002 are not sustainable in law and those are set aside and quashed. It is observed that quashing the impugned order will not preclude the authority to pass an appropriate order by giving proper and due opportunities to the Petitioners to defend their cases, if so advised. 21. Accordingly, this writ petition is allowed. No costs. Petition allowed.