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2010 DIGILAW 318 (UTT)

VIPUL KUMAR v. STATE OF UTTARAKHAND

2010-05-14

SUDHANSHU DHULIA

body2010
JUDGMENT (ORAL) All these writ petitions raise a common question of law. The facts pertaining to each petition are also by and large common, hence, they are being decided by a common order. 2. The facts of the case in brief are as follows : 3. In response to an advertisement issued by the Education Department of the erstwhile State of Uttar Pradesh inviting applications for appointment of Assistant Teachers L.T. Grade (Science), the petitioner (in Writ Petition S/S) 1328 of 2008) respondent by moving an application against the said advertisement. Thereafter, the petitioner faced a duly appointed selection committee, which recommended the name of the petitioner and consequently the petitioner was issued an appointment letter dated 10.12.1999. Thereafter, the petitioner joined as an Assistant Teacher L.T. Grade (Science) in Rajkiya Inter College, Naulbasar, District Tehri Garhwal on 24.12.1999 on the post of Assistant Teacher L.T. Grade (Science). Similarly, other petitioners in the writ petitions mentioned above who also had faced a duly appointed selection committee were subsequently given appointment letters between 1999 to 2003 and consequently they also joined their respective colleges/institutions as Assistant Teachers L.T. Grade (Science) and started taking their classes: All these facts are admitted. Similarly, petitioners in each of the writ petition, referred above, also was appointed in response to similar advertisement and consequently appointed as L.T. grade (Science) Teachers though on different dates. 4. All the same, a quite different Writ Petition was filed in the High Court of Judicature at Allahabad being Writ Petition No. 24465 of 2000 which was subsequently transferred before this High Court after the creation of new High Court and the case was renumbered as Writ Petition (S/S) No. 1023 of 2001 “Beer Bichitra Singh and another Vs. State of U.P. & Others”. In this writ petition all the appointments made on the post of Assistant Teacher ((L.T. Grade) as above, were challenged. While the said writ petition was being heard by a learned Single Judge of this Court, the Secretary, Education, State of Uttarakhand was summoned on 24.4.2008 and following orders were passed : “Heard Sri Rakesh Thapliyal, learned Counsel for the petitioners, Sri J.P. Joshi, learned Chief Standing Counsel assisted by Sri H.M. Raturi, learned Standing Counsel and Sri Rajendra Dobhal, learned Counsel for the respondent no. 3. Sri Harish Chandra Joshi, Secretary, Education, Government of Uttarakhand is present. 3. Sri Harish Chandra Joshi, Secretary, Education, Government of Uttarakhand is present. On the instructions received and after scrutiny of the papers, learned Chief Standing Counsel fairly admitted that the appointment has not been made in accordance with rules and he assures the Court that the mistake shall be corrected within a week. List after a week. Personal appearance of the Secretary, Education is exempted.” 5. The State Government thereafter without issuing any show cause notice to the petitioners vide order dated 3.5.2005 cancelled the initial appointment of the petitioners which were made between 1999 to 2003. It is also an admitted fact that before passing the impugned order the concerned authority did not give any show cause notice or an opportunity of hearing to the petitioners. In the present bunch of writ petitions primarily a prayer has been made for quashing the order of cancellation of appointment of the petitioners. 6. Heard learned counsel for the petitioners as well as the Standing Counsel for the State. 7. Before we come down to the legality of the impugned orders, it is necessary to examine certain facts of this case. The appointment in question was to the post of Assistant Teacher L.T. Grade (Science) and the basic qualification for the post was that the candidate must be a graduate in Science with Physics, Chemistry and Mathematics as subjects. The common factor in all the petitions is that whereas all the petitioners have Physics and Mathematics as subjects but instead of the third subject i.e. Chemistry, the petitioners were either having Statistics or some other subjects. As per the rules prevailing at the relevant point of time, it was necessary that the candidates must have Physics, Chemistry and Mathematics as three subjects in the graduation. It is also necessary to state at this juncture that during the pendency of these petitions the State of Uttarakhand in the year 2006 has amended the said eligibility rules and consequently even if a candidate is having any of the two subjects as above, he is eligible to the appointment of Assistant Teacher L.T. Grade (Science). All the same, at the relevant time, the requirement was that the candidates must have all the three subjects in their graduation. All the same, at the relevant time, the requirement was that the candidates must have all the three subjects in their graduation. However, it is not a case where the petitioners while applying for the post of assistant Teachers L.T. Grade (Science) had withheld any relevant information or had filed incorrect or misleading information or had committed any kind of forgery or fraud. They had clearly stated their qualifications and inspite of it the selection committee chose to select these candidates and they were given appointment in different colleges/institutions where for the last many years they have been teaching. It has been stated by Sri Rajendra Dobhal, Senior Advocate that in fact in his case (Writ Petition (S/S) No. 1328 of 2008) the petitioner was subsequently promoted as a Lecturer (Physics), what was in the year 2005. 8. Be that as it may, once it is clearly established that the petitioners have not procured their employment by forgery or fraud, it was absolutely necessary that before their services were to be terminated an opportunity of hearing or show cause was to be given to them by the concerned authorities. This was denied to them and in view of this Court this amounts to a clear violation of the principle of natural justice and fair play. Therefore, the impugned orders being violative of article 14 of the Constitution of India and the principles of natural justice and fair play are liable to be set aside. Sri N.P. Sah, learned Standing Counsel, on the other hand, states that although before passing the impugned orders an opportunity of hearing was not given to the petitioners but in some cases during the pendency of the writ petitions, in compliance of the interim order of this Court an opportunity of hearing was given and the order of termination was upheld., Even this action of the State will not purge the initial order of termination, as it is settled position of law that an opportunity of hearing has to be predecisional and not post-decisional. It is an admitted case of the State authorities that before passing the impugned orders no opportunity of hearing has been given to the petitioners. 9. This Court has also examined the orders passed by this Court on 24.4.2008 in Writ Petition (S/S) No. 1023 of 2001 “Beer Bichitra Singh and others Vs. State of U.P. and others. It is an admitted case of the State authorities that before passing the impugned orders no opportunity of hearing has been given to the petitioners. 9. This Court has also examined the orders passed by this Court on 24.4.2008 in Writ Petition (S/S) No. 1023 of 2001 “Beer Bichitra Singh and others Vs. State of U.P. and others. A perusal of the same shows that no positive directions were given by this Court directing the State authorities to terminate the services of the petitioners. Moreover, even if the order dated 24.4.2008, which has already been referred above, is interpreted as any kind of direction to the State Government to terminate the services of the petitioners, it was incumbent upon the State Government to give an opportunity of hearing or show cause to the petitioners before terminating their services. Since this has not been done, this Court without going into the merit of the case is of the view that the impugned orders cannot be sustained. The orders by which the services of the petitioners have been terminated are clearly violative of principles of natural justice and fair play inasmuch as the orders had civil consequences and, therefore, it was necessary that prior to passing the impugned orders the petitioners were liable to be given an opportunity of hearing. The law on this stands settled since the seminal decision of the Apex Court in State of Orissa v. Dr. (Miss) Binapani Dei and others, AIR 1967 SC 1269 which has consistently been followed by the courts. There is a clear lack of good conscience on the part of the public authority which has passed the impugned orders. All these orders are liable to be set aside. Impugned orders dated 3.5.2008 (in Writ Petition (S/S) No. 1328 of 2008, Writ Petition (S/S) No. 374 of 2008, Writ Petition (S/S) No. 378 of 2008, Writ Petition (S/S) No. 483 of 2008), dated 12.8.2008 (in Writ Petition S/S) No. 960 of 2008 and dated 25.9.2008 (in Writ Petition (S/S) No. 1175 of 2008, Writ Petition (S/S) N o. 1191 of 2008, Writ Petition (S/S) No. 1192 of 2008, Writ Petition (S/S) No. 1193 of 2008, Writ Petition (S/S) No. 1198 of 2008) are hereby set aside. All these Writ Petitions are allowed. No order as to costs.