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2017 DIGILAW 363 (ALL)

Surya Prakash v. State of Uttar Pradesh

2017-01-27

DEVENDRA KUMAR ARORA

body2017
JUDGMENT : Devendra Kumar Arora, J. Heard Dr. L.P. Misra, learned counsel for the petitioners and learned Standing Counsel. 2. Petitioners have approached this Court inter-alia assailing the order dated 13.12.2002 passed by the Director Homeopathy, Indira Bhawan, Lucknow as well as order dated 11.12.2002 passed by the Secretary, Medical Education, U.P. 3. Learned Counsel for the petitioners has submitted that the Principal Secretary, Government of U.P. vide order dated 16.07.2002 directed all the Secretaries, Government of U.P., Head of Departments, all Commissioners/District Magistrates to fill up the backlog quota of Group-D posts of Scheduled Castes/Scheduled Tribes and Other Backward Classes in order to implement the policy decision of State Government for filling up the backlog vacancies of SC/ST and OBC by direct recruitment/promotion. Further, in pursuance of the Government Order dated 16.07.2002, the Director, Homeopathy vide letter dated 14.08.2002 directed all District Homeopathy Medical Officers to make him available necessary information regarding number of sanctioned vacancies available, so that the backlog vacancies of S.C./S.T. may be filled. In furtherance thereof, a direction was issued to issue advertisement, constitute Selection Committee and after selection and appointment of the candidates, compliance report was required to be submitted. 4. In compliance of the directions contained in the aforesaid Government Order, an advertisement was published on 24.08.2002 in the Newspaper 'Dainik Jagran' inviting applications from the persons belonging to S.C./S.T. and O.B.C to fill up 8 vacant posts of Peon-cum-Chowkidar (Group-D post) under the backlog quota in different Rajkiya Homeopathy Hospitals, District-Siddharthnagar, fixing 09.09.2002 as last date of submission of application. Further, date of interview was also announced from 17.10.2002 to 20.10.2002 by the Selection Committee but due to some unavoidable circumstances, the interview could not be held at scheduled time, and, ultimately held in between 11.11.2002 and 14.11.2002 by the Selection Committee comprising four members headed by opposite party no. 3. 5. Petitioners, who have requisite qualifications as prescribed under the advertisement, applied and appeared before the Selection Committee and were declared successful by the Selection Committee. Vide letter dated 16.11.2002, they were issued appointment letters and after receipt of the same, petitioners joined their duties on 18.11.2002 at respective places of their posting. Thereafter, District Medical Officer, Homeopathy, Siddharth Nagar vide letter dated 18.11.2002 informed the Director, Homeopathy regarding compliance of the order dated 14.08.2002. 6. Vide letter dated 16.11.2002, they were issued appointment letters and after receipt of the same, petitioners joined their duties on 18.11.2002 at respective places of their posting. Thereafter, District Medical Officer, Homeopathy, Siddharth Nagar vide letter dated 18.11.2002 informed the Director, Homeopathy regarding compliance of the order dated 14.08.2002. 6. The petitioners were shocked to receive the order dated 13.12.2002 whereby their appointments were cancelled without affording any opportunity. Learned Counsel also brought attention of this Court towards the letter dated 11.12.2002 of the State Government (Annexure-2 to the Writ Petition), whereby appointments of the petitioners were cancelled because of certain complaints received with respect to the interview which took place in between 11.11.2002 to 14.11.2002 and Dr. R.P. Dubey, Director, Homeopathy, U.P. was nominated as Inquiry Officer. 7. Learned Counsel for the petitioners vehemently argued that the impugned order is certainly in violation of principles of natural justice and was illegal and arbitrary. As on one hand Dr. R.P. Dubey, Director, Homeopathy, U.P. was nominated as Inquiry Officer to inquire into the matter and on the other hand services were terminated without conducting any preliminary enquiry and affording opportunity of hearing to the petitioners. 8. It has been asserted that after joining of the petitioners at their respective places of posting, certain civil rights have accrued in their favour, therefore, an opportunity was required to be given, may be in the shape of explanation. Non observance of principles of natural justice vitiates the impugned order. Therefore, the orders passed by the opposite parties are not sustainable. 9. In contrast, a counter affidavit has been filed by the State Authorities stating therein that District Magistrate, Sidharthnagar wrote a letter dated 03.12.2002 indicating irregularities committed in making appointment of Peon-cum-Chowkidar to the Secretary, Medical Education and in pursuance of the same illegal appointments were cancelled in accordance with law. 10. It has been pointed out that on the direction of the District Magistrate, preliminary enquiry was done by ADM (F/R), District-Sidharthnagar, in which grave irregularities in respect of selections were found and, therefore, action was taken. 11. 10. It has been pointed out that on the direction of the District Magistrate, preliminary enquiry was done by ADM (F/R), District-Sidharthnagar, in which grave irregularities in respect of selections were found and, therefore, action was taken. 11. Learned Counsel has also drawn the attention of this Court towards the letter dated 03.12.2002 of District Magistrate (Annexure CA-2), written to the Secretary, Medical Education after the appointment of the petitioners on the basis of some alleged report of ADM (F & R) and from the perusal of Annexure-3, it is clear that there were candidates having Intermediate, B.Sc., B.Ed. Qualification whereas prescribed qualification was Class V and on account of the availability of persons having higher qualification, and, non-selection of highly qualified candidates created doubt in the mind of authority concerned. 12. Refuting the allegations of Standing Counsel, Dr. L.P. Misra, learned Counsel for the petitioners has also pointed out that as the posts in question require educational qualification of Class V and even if, a candidate having higher educational qualification has applied, then it was also necessary to examine if a person having higher educational qualification is suitable for the said posts. It is also submitted by learned Counsel that in the entire report there is no allegation of bias or favouritism/nepotism but nonetheless the State Government on one hand nominated Dr. R.P. Dubey, Director, Homeopathy, U.P. as Inquiry Officer to inquire into the matter and on the other hand cancelled the result of Interview held between 11.11.2002 and 14.11.2002, consequently petitioners' services were terminated, which shows colourable exercise of power. 13. Before proceeding further, it would be useful to mention the legal position on the subject. While terminating services of an appointee who has been selected in the selection process, the compliance with the three principles as enumerated in Inderpreet Singh Kahlon v. State of Punjab, 2006 (11) SCC 356 is imperative at the hands of the State. These principles are (1) to establish satisfaction in regard to the sufficiency of the materials collected so as to enable the State to arrive at its satisfaction that the selection process was tainted; (2) to determine the question that the illegalities committed go to the root of the matter which vitiate the entire selection process. These principles are (1) to establish satisfaction in regard to the sufficiency of the materials collected so as to enable the State to arrive at its satisfaction that the selection process was tainted; (2) to determine the question that the illegalities committed go to the root of the matter which vitiate the entire selection process. Such satisfaction as also the sufficiency of materials were required to be gathered by reason of a thorough investigation in a fair and transparent manner; (3) whether the sufficient material present enabled the State to arrive at a satisfaction that the officers in majority have been found to be part of the fraudulent purpose or the system itself was corrupt. 14. In this connection, it would be useful to refer the observations of the Apex Court in Shridhar v. Nagar Palika, Jaunpur reported in AIR 1990 SC 307 . In this case, the Apex Court held as under:- "It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him." 15. It is also relevant to mention that the Hon'ble Supreme Court in the case of Union of India and others v. Rajesh P.U. Puthuvalnikathu and another, (2003) 7 SCC 285 observed that where from out of selectees, it was possible to read out the beneficiaries of the irregularities or illegalities, there was no justification in law to deny appointment to the selected candidates whose selection was not found to be, in any manner, vitiated for anyone or the other reasons. The en bloc cancellation is not permissible. 16. In the instant case, from the material on record, it is abundantly clear that no such exercise was conducted by the opposite parties and by a single pen of stroke, entire selection process has been cancelled. 17. As averred above, petitioners in pursuance of the appointment order dated 16.11.2002 joined their duties at their respective places on 18.11.2002 but their appointment was cancelled by the respondents allegedly on the ground of some irregularities committed during the selection process in utter disregard of principle of natural justice. 18. 17. As averred above, petitioners in pursuance of the appointment order dated 16.11.2002 joined their duties at their respective places on 18.11.2002 but their appointment was cancelled by the respondents allegedly on the ground of some irregularities committed during the selection process in utter disregard of principle of natural justice. 18. In National Building Construction Corporation v. S. Raghunathan; (1998) 7 SCC 66 , it was observed by the Apex Court that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy, and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons. 19. In the case at hand, the Standing Counsel has failed to show any document by which it can be inferred that a proper notice was given prior to the passing of the impugned orders. It may be added that when the petitioners have joined their respective posts, pursuant to the appointment orders, issued by the competent authority, valuable legal rights have accrued to them. Therefore, they must have been given a notice before cancellation of appointment orders. 20. In view of the discussions made above, impugned order dated 13.12.2002 passed by the opposite party no.2 contained in Annexure-2 to the writ petition is liable to be quashed. 21. Accordingly, the writ petition succeeds and is allowed. Impugned order dated 13.12.2002, is quashed. A writ of mandamus is issued commanding competent authority to pass appropriate fresh orders in accordance with law considering the findings recorded in this judgment.