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2020 DIGILAW 392 (GAU)

Chandan Borgohain v. State of Assam

2020-03-13

SANJAY KUMAR MEDHI

body2020
ORDER : Sanjay Kumar Medhi, J. 1. The subject-matter of these writ petitions being similar in nature where challenge to the discontinuation/termination of the services of the petitioners as Surveillance Workers (hereinafter referred as SWs), is under challenge, these writ petitions are taken up for disposal by this common order. 2. The brief facts of the cases which are necessary to be considered for adjudication of the issue may be summarized in the following manner. 3. The petitioners belonging to different districts in the State of Assam claimed to have been appointed as SWs for the period 2010 onwards. Pursuant to such appointment, few of the petitioners were also transferred to different places of postings vide orders issued by the Joint Director of Health Services of the concerned district. The petitioners contend that they were paid salaries by following pay scale and the same was being through the State Bank of India. The petitioners were also issued Identity Cards and statutory deductions were also made from their salaries. However, after serving for a long period of time as regular employees, the petitioners had to undergo a verification process whereby they were required to furnish all their original documents pertaining to their appointments as SWs. Such verification was a part of a fact-finding inquiry. At this stage, it would be pertinent to note that so far as the petitioners belonging to the district of Dibrugarh are concerned, there was a devastating fire in the District Malaria Office which had gutted all the official records. In that process, the petitioners pertaining to the Dibrugarh district had additionally pleaded that in the said fire, the documents furnished by them were also destroyed. In this connection, necessary certificates have been annexed in the concerned writ petition pertaining to Dibrugarh district. Nonetheless, it is the case of the petitioners that the documents, as such, were duly submitted. However, vide an order dated 30.06.2017, issued by the Joint Director of Health Services, the petitioners were removed from their services. It is also the case of the petitioners that prior to such removal from June, 2017, their salaries were also stopped. 4. I have heard Shri P.K. Goswami, learned Senior Counsel assisted by Shri B.P. Bora, learned counsel for the petitioners in WP(C) No. 4341/2017 as well as WP(C) No. 5109/2017. I have also heard Ms. S. Barpatragohain, learned counsel for the petitioners in WP(C) Nos. 4. I have heard Shri P.K. Goswami, learned Senior Counsel assisted by Shri B.P. Bora, learned counsel for the petitioners in WP(C) No. 4341/2017 as well as WP(C) No. 5109/2017. I have also heard Ms. S. Barpatragohain, learned counsel for the petitioners in WP(C) Nos. 4832, 4847, 5580/2017; Ms. T. Som, learned counsel for the petitioners in WP(C) Nos. 1895, 1931, 4850/2017; Mr. S.R. Barbhuiya, learned counsel for the petitioners in WP(C) No. 4965/2016; Ms. S. Bora, learned counsel for the petitioners in WP(C) No. 7419/2017; Mr. I Choudhury, learned counsel for the petitioner in WP(C) No. 4970/2017. I have also heard Shri D. Saikia, learned Senior Counsel assisted by Shri B. Gogoi, learned counsel for the respondent- Department. It may be mentioned that the learned Senior Counsel Shri Goswami had led the arguments on behalf of the petitioners. 5. As indicated above, the facts are almost identical, except the district of Dibrugarh, which encountered the fire accident in the District Malaria Office. 6. Opening his arguments, Shri P.K. Goswami, the learned senior Counsel has submitted that the impugned action, inter aha, is in gross violation of the principles of natural justice. No semblance of any opportunity or reason has been afforded to the petitioners before issuing the removal notice. The said notice having adverse civil consequences, the minimum requirement was to afford an opportunity and by not giving the same, the entire action would be rendered void ab initio. Secondly, the learned Senior Counsel submits that for all purposes, the petitioners were treated as regular employees of the Department and the provisions of the Assam Service (Discipline and Appeal) Rules, 1964 (hereinafter for short referred to as the Rules, 1964), is applicable to them. However, there has been a total go-by of the said provisions which provide the minimum safeguard to a Government employee. By referring to the sequence of events leading to issuance of the impugned order, Shri Goswami, the learned Senior Counsel has submitted that apparently the termination order has been passed at the dictation of some other authority and there is no application of mind while issuing the impugned order dated 21.06.2017 of the Director of Health Services which is the competent authority under the law to issue such order. Emphasizing on the contents of the impugned order, it is submitted that the order at the very beginning states as follows:- "As per Government letter No. HLA. 1007/2016/278, dated 19.06.2017. "The same reflects that there is no application of mind at all by the competent authority and simply on the direction of the Government, the removal order was issued to the petitioners without giving any opportunity. Though an allegation was made that the petitioners had initially not appeared for the verification, it has been explained that none of the petitioners were served with any notices requiring them to attend the verification. However, it is submitted that on being served with a notice, the petitioners did not shy away from appearing with their documents. Shri Goswami, the learned Senior Counsel submits that on a reading of the documents annexed to the affidavit-in-opposition, it has come to light that the genuineness of the appointments were questioned and the findings are apparently tentative in nature; rather, it has been pointed out that the findings are mainly on suspicion and are not conclusive. It is further submitted that the actions appear to have been taken as per Reports of the Screening Committees, which, however, have not been furnished to the petitioners. It is also submitted that apart from the provisions of the Assam Service (Disciplinary and Appeal) Rules, 1964, requirements of Article 311 of the Constitution of India and the principles of natural justice have been grossly violated. In case of any discrepancy in the appointments of the petitioners, the respondent authorities were duty bound to frame definite charges, seek the response of the petitioners and thereafter take action in accordance with due process of law. The learned senior Counsel further submits that under similar circumstances so far as the employees belonging to the Grade-TV and Officers of the Department are concerned, regular disciplinary proceedings have been initiated whereas no such proceeding was ever initiated against the petitioners before imposing the major penalty. 7. Elaborating the facts of the case in details, it is submitted that the impugned order dated 30.06.2017 was issued by the Joint Director of Health Services of the district which was based on a communication dated 21.06.2017 issued by the Director of Health Services which in turn was based upon a communication dated 19.06.2017 issued by the Secretary to the Government of Assam, Health and Family Welfare Department. In support of the submissions regarding payment of salaries, the Last Pay Slip for the month of December, 2016 so far as one of the petitioners is concerned has been annexed with a further submission that all payments were made through the State Bank of India. The Identify Card and documents relating to the petitioners being governed by the New Pension Scheme (NPS) have been annexed. All along the petitioners were entrusted with duties of SWs. From the affidavit-in-opposition of the Government, it has also been learnt that on 15.02.2017, there was a suspicion that the appointments of the petitioners were fake leading to the first phase of verification. An inquiry report dated 07.03.2017 was prepared wherein a finding was arrived at that the appointments of the petitioners were fake. As a matter of fact, the salaries of the petitioners were stopped from January, 2017 and vide the impugned order dated 30.06.2017, they were removed from their services. In support of his submissions, learned Senior Counsel has relied upon the following decisions of the Hon'ble Supreme Court: (i) Commissioner of Police, Bombay v. Gordhandas Bhanji, reported in AIR 1952 SC 16 ; (ii) The Purtabpore Co. Ltd. v. Cane Commissioner of Bihar and Ors., reported in (1969) 1 SCC 308 : AIR 1970 SC 1896 ); (iii) Shrawan Kumar Jha and Ors. v. State of Bihar and Ors, reported in (1991 Suppl (1) SCC 330 : AIR 1991 SC 309 : 1991 Lab IC 1317); (iv) Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors., reported in (1993) 4 SCC 727 : AIR 1994 SC 1074 : 1994 Lab IC 762). 8. The case of Gordhandas Bhanji ( AIR 1952 SC 16 ) (supra), has been cited in support of the submission that an order has to contain the reasons for issuing the same and such reasons cannot be supplemented by way of an affidavit. 9. The case of Cane Commissioner of Bihar and Ors. (supra), has been cited to bring home the fact that there cannot be any abdication of powers by any Authority to another Authority and such power has to be exercised by independent application of mind. 10. The case of Shrawan Kumar Jha and Ors. 9. The case of Cane Commissioner of Bihar and Ors. (supra), has been cited to bring home the fact that there cannot be any abdication of powers by any Authority to another Authority and such power has to be exercised by independent application of mind. 10. The case of Shrawan Kumar Jha and Ors. ( AIR 1991 SC 309 : 1991 Lab IC 1317) (supra) has been cited in the context of the importance of adhering to the principles of natural justice in case any adverse action is taken. 11. The importance of holding an inquiry and furnishing of the inquiry report to the delinquent before taking any adverse action has been highlighted in the case of Managing Director, ECU., Hyderabad and Ors. (ATR 1994 SC 1074 : 1994 Lab IC 762) (supra). 12. Shri Goswami, learned senior Counsel summarizes his submissions in the following manner: (i) The order of termination of service is at the dictate of the State Government; (ii) There is no independent application of mind by the competent authority before issuing the impugned order of termination; (iii) The verification process and the reports upon which reliance has been placed are preliminary in nature in which the petitioners were not afforded any opportunity. (iv) The inquiry reports are not conclusive and the findings are only tentative based upon suspicion; (v) The process of termination is alien to the concept of due process of law; (vi) The Screening Committee's report based upon which action has been taken was never furnished to the petitioners; (vii) The impugned action is in gross violation of the mandates of Article 311 of the Constitution of India and the principles of natural justice; (viii) The inability to produce the original documents by the petitioners (Dibrugarh district) was an impossibility and no fault could have been attributed to the petitioners; (ix) The impugned action is per se discriminatory inasmuch similarly situated Grade-IV employees and Officers of the Department have proceeded departmentally whereas no such disciplinary proceeding was initiated against the petitioners. 13. The learned counsel appearing for the petitioners in the rest of the cases, have endorsed the submissions of Shri Goswami, learned senior Counsel. 14. Ms. 13. The learned counsel appearing for the petitioners in the rest of the cases, have endorsed the submissions of Shri Goswami, learned senior Counsel. 14. Ms. S. Borpatragohain, learned counsel for the petitioners pertaining to the district of Sivasagar, however, additionally submits on facts that the petitioners had appeared before the Screening Committee and had submitted all the relevant documents and so far as one of the petitioners is concerned, a transfer order dated 03.08.2013 has been annexed which would show that for all purposes, the petitioners were treated as regular SWs. 15. Shri I. Choudhury, learned counsel appearing for the petitioner in WP(C) No. 4970/2017, pertains to the district of Cachar and endorses the submissions of the learned senior Counsel. Similar stand is taken by Shri S.R. Bhuiyan, learned counsel for the petitioners in WP(C) No. 4965/2016 (Darrang, Lakhimpur and Cachar districts); Ms. T. Som, learned counsel for the petitioners in WP(C) Nos. 1895/2017, 1931/2017 and 4850/2017 pertaining to the Kamrup (Rural) and Cachar districts and Shri M.U. Mahmud, in WP(C) No. 4943/2017. 16. However, Shri Mahmud, learned counsel for the petitioners in WP(C) No. 4943/2017 submits that there is a slight difference in the facts of the case which is noted as follows: 17. Out of the three petitioners in this case, the petitioner No. 1 was appointed as S W vide an order 11.04.2008. He was thereafter transferred on 04.01.2013 and removed from service vide order 17.01.2017. Incidentally, the said petitioner No. 1 was reinstated vide an order 28.02.2017. The petitioner Nos. 2 and 3 were similarly dismissed; however, the petitioner No. 3 was reinstated vide order 28.03.2017. It is the grievance of the petitioners that despite of such reinstatement, no work has been allotted to them and no salaries being paid. 18. The projection of facts on behalf of the petitioners and the relief claimed have met with stiff resistance from the respondent authorities who is represented by Shri D. Saikia, learned Senior Counsel assisted by Shri B. Gogoi. 19. Shri Saikia at the outset, has pointed out that none of the petitioners in the aforesaid writ petitions have annexed any of their appointment letters and even details of such appointments have not been divulged in the writ petitions. 19. Shri Saikia at the outset, has pointed out that none of the petitioners in the aforesaid writ petitions have annexed any of their appointment letters and even details of such appointments have not been divulged in the writ petitions. Pointing out the pleadings in WP(C) No. 4341/2017 that the engagements of the petitioners were made under a scheme during the periods 2010-2015 whereas the petitioner No. 1 in the said writ petition, states that he has been working since the year 2006. It is accordingly, submitted that there is gross inconsistencies in the pleadings of the writ petition itself. It is also pointed out that there is no averment, whatsoever in the writ petition regarding the recruitment process which was undergone by the petitioners prior to their appointments. By referring to the affidavit-in-opposition filed by the Department, Shri Saikia categorically submits that not a single appointment/engagement of SWs were done in the period 2010-2015. 20. It is submitted on behalf of the respondent Department that the service conditions of SWs as a whole being in a fluid stage, it was after a decision of this Court passed in the case of Bhaben Mohan and Ors. v. State of Assam and Ors. reported in 2007 (3) GLT 132 that the Assam (Vector Borne) Diseases Order, 2006 was enacted by the State. The said rules had undergone an amendment in the year 2010 and the relevant provisions are 2(a), 2(f), 2(g) and 5 which are quoted herein below:- "2. Definition: (a) "Appointing Authority" means the Director of Health Services in respect of the cadre of Assam Vector Borne Disease Control Programme Workers Service. (f) "Member" means a member of the Malaria Workers included persons working as SW, BHW, SI, BHI, MI, Sr. MI and AMO under the Health and FW Deptt. of Government of Assam. (g) "Select List" means the list as referred to in clause (vi) of sub-paragraph (1) of paragraph 6 of these orders. 5. Method of Recruitment: Recruitment to the service shall be made in the following manner: Recruitment to all cadres of service shall be made by direct recruitment in accordance with paragraph 6 of these orders." 21. (g) "Select List" means the list as referred to in clause (vi) of sub-paragraph (1) of paragraph 6 of these orders. 5. Method of Recruitment: Recruitment to the service shall be made in the following manner: Recruitment to all cadres of service shall be made by direct recruitment in accordance with paragraph 6 of these orders." 21. Reiterating that no averment has been made in any of the writ petition regarding undergoing of a recruitment process, the Senior Counsel has submitted that SWs form a cadre under the aforesaid Rules and it is not the case of the petitioners that they were appointed against such cadre. He asserts that there were recruitment drives for SWs only in the year 2008 for 464 numbers of vacancies and in the year 2015 for 85 numbers of vacancies and the total cadre strength is 1679 in the entire State and none of the petitioners are holding any cadre posts. It is submitted that the only reason that the petitioners are unable to produce any appointment letters is that all such appointments were fake and only transfer orders of subsequent dates have been annexed by few of the petitioners which are also manufactured. While admitting that there is complicity of officers holding high posts in the Department in the aforesaid fraudulent exercise which include the then Director of Health Services, a number of Joint Directors of Health Services etc., it is submitted that no legal right whatsoever has accrued upon the petitioners by entering into the services by means of fraud. Shri Saikia categorically submits that apart from the Departmental proceedings, police cases have been lodged against the erring officers. It is also submitted that as far present instructions received during the hearing of this case, trial against such erring officers is pending in the appropriate criminal court. 22. By referring to the detailed affidavit-in-opposition filed through the Director of Health Services dated 19.07.2018, it is submitted that the illegalities had surfaced after an inquiry was conducted by the CM Vigilance Cell in the year 2016 whereby Screening Committees were constituted for the entire State to conduct a verification. It was detected that most of appointees for the said period were posted on the basis of transfer order without there being any original order of appointment. It was detected that most of appointees for the said period were posted on the basis of transfer order without there being any original order of appointment. Accordingly, five numbers of Screening Committees were constituted which had conducted the verification process by issuing notices even in newspapers. The procedure adopted and the action taken by the Screening Committees have been categorically mentioned in the said affidavit-in-opposition with and the consistent stand is that the appointment of the petitioners were fake and the last selection of SWs were in the year 2008 where none of the petitioners name figured. 23. In support of his submissions, the learned senior Counsel for the Department relied upon the following decisions:- (i) State of Manipur and Ors. v. Y Token Singh and Ors., reported in (2007) 5 SCC 65 : (AIR 2007 SC (Supp) 145 : 2007 Lab IC 1601 : 2007 AIR SCW 1995); (ii) Devika Kumbang and Ors. v. State of Assam and Ors., reported in 2005 (1) GLT 83; (iii) Bhaben Mohan and Ors. v. State of Assam and Ors., reported in 2007 (3) GLT 132 : (2007 Lab IC 2045 (Gau)); (iv) State of Bihar and Ors. v. Devendra Sharma, reported in 2019 (14) SCALE 178 . 24. The case of State of Manipur and Ors.( AIR 2007 SC (Supp) 145 : 2007 Lab IC 1601 : 2007 AIR SCW 1995) (supra), which is heavily relied upon by the Department involved cancellation of fake appointments in various posts of Mandols, Process Servers, Zilladars which were not within the knowledge of the State. The Hon'ble Supreme Court has held that since the appointments were fake, the petitioner were not entitled for equitable relief as no legal right were able to be established in their favour. It has also been held that there is no violation of the principles of natural justice which would otherwise also result in futility. The relevant paragraphs are extracted herein below:- "14. The State while offering appointments, having regard to the constitutional scheme adumbrated in Articles 14 and 16 of the Constitution of India, must comply with its constitutional duty, subject to just and proper exceptions, to give an opportunity of being considered for appointment to all persons eligible therefore. 15. The relevant paragraphs are extracted herein below:- "14. The State while offering appointments, having regard to the constitutional scheme adumbrated in Articles 14 and 16 of the Constitution of India, must comply with its constitutional duty, subject to just and proper exceptions, to give an opportunity of being considered for appointment to all persons eligible therefore. 15. The posts of field staffs of the Revenue Department of the State of Manipur were, thus, required to be filled up having regard to the said constitutional scheme. We would proceed on the assumption that the State had not framed any recruitment rules in terms of the proviso appended to Article 309 of the Constitution of India but the same by itself would not clothe the Commissioner of Revenue to make recruitments in violation of the provisions contained in Articles 14 and 16 of the Constitution of India. 16. The offers of appointment issued in favour of the respondents herein were cancelled inter alia on the premise that the same had been done without the knowledge of the Revenue Department of the State. No records therefore were available with the State. As noticed hereinbefore, an inquiry had been made wherein the said Shri Tayeng, the then Commissioner of Revenue stated that no such appointment had been made to his knowledge. The State proceeded on the said basis. The offers of appointment were cancelled not on the ground that some irregularities had been committed in the process of recruitment but on the ground that they had been non est in the eye of law. The purported appointment letters were fake ones. They were not issued by any authority competent therefore. 17. If the offers of appointments issued in favour of the respondents herein were forged documents, the State could not have been compelled to pay salaries to them from the State exchequer. Any action, which had not been taken by an authority competent therefore and in complete violation of the constitutional and legal framework, would not be binding on the State. In any event, having regard to the fact that the said authority himself had denied to have issued a letter, there was no reason for the State not to act pursuant thereto or in furtherance thereof. The action of the State did not, thus, lack bona fide. 18. In any event, having regard to the fact that the said authority himself had denied to have issued a letter, there was no reason for the State not to act pursuant thereto or in furtherance thereof. The action of the State did not, thus, lack bona fide. 18. Moreover, it was for the respondents who had filed the writ petitions to prove existence of legal right in their favour. They had inter alia prayed for issuance of a writ of or in the nature of mandamus. It was, thus, for them to establish existence of a legal right in their favour and a corresponding legal duty in the respondents to continue to be employed. With a view to establish their legal rights to enable the High Court to issue a writ of mandamus, the respondents were obligated to establish that the appointments had been made upon following the constitutional mandate adumbrated in Articles 14 and 16 of the Constitution of India. They have not been able to show that any advertisement had been issued inviting applications from eligible candidates to fill up the said posts. It has also not been shown that the vacancies had been notified to the employment exchange. 19. The Commissioner furthermore was not the appointing authority. He was only a cadre controlling authority. He was merely put a Chairman of the DPC for non-ministerial post of the Revenue Department. 20. The term "DPC" would ordinarily mean the Departmental Promotion Committee. The respondents had not been validly appointed and in that view of the matter, the question of their case being considered for promotion and/or recruitment by the DPC did not and could not arise. Even assuming that DPC would mean Selection Committee, there is noting on record to show who were its members and how and at whose instance it was constituted. The Commissioner, as noticed hereinbefore, was the Chairman of the DPC. How the matter was referred to the DPC has not been disclosed. Even the affidavit affirmed by Shri Tayeng before the High Court in this behalf is silent. 21. The appointing authority, in absence of any delegation of power having been made in that behalf, was the State Government. The Government Order dated 12.01.1998 did not delegate the power of appointment to the Commissioner. He, therefore, was wholly incompetent to issue the appointment letters." 25. In Devika Kumbang and Ors. 21. The appointing authority, in absence of any delegation of power having been made in that behalf, was the State Government. The Government Order dated 12.01.1998 did not delegate the power of appointment to the Commissioner. He, therefore, was wholly incompetent to issue the appointment letters." 25. In Devika Kumbang and Ors. (supra), a single Bench of this Court has held as follows:- "(13) In the instant case, the illegal appointments of the petitioner in non- existent posts showing fake sanction order and without any selection as per statutory rules goes to the roof and the same is per se illegal and void ab initio conferring no right upon the appointees. The petitioners in course of the arguments could not show and establish that their appointments were valid in law and/or/they have acquired valid right to continue in their services pursuant to such illegal orders. (14) The appointments of the petitioners having been made in violation of the statutory rules as well as being in violation of Articles 14 and 16 of the Constitution of India, and that too in non-existent posts by issuing fake sanction letter in a designed way causing below to the State exchequer are void-ab-initio and by virtue of the impugned order necessary directions were given to the concerned officers to issue formal order of termination and in view of the discussions made hereinabove, the impugned order cannot be held to be illegal, unjust or improper in the facts and circumstances of the present case necessitating interference under the writ jurisdiction of this Court, exercising power of judicial review." 26. The case of Bhaben Mohan and Ors. (2007 Lab IC 2045 (Gau)) (supra) has been cited for the purpose that it was only in accordance with this judgment that the Service Orders for SWs were published in the Official Gazette on 31.05.2007. 27. The case of Devendra Sharma (AIR Online 2019 SC 1226) (supra), has been cited to bring home that the different consequences as prescribed for irregular appointments and illegal appointments that the petitioners are not even entitled to the salaries for a certain period which were withheld prior to the termination. 27. The case of Devendra Sharma (AIR Online 2019 SC 1226) (supra), has been cited to bring home that the different consequences as prescribed for irregular appointments and illegal appointments that the petitioners are not even entitled to the salaries for a certain period which were withheld prior to the termination. For ready reference, the relevant extract of the judgment is quoted herein below:- "44) In view of the aforesaid judgments, it cannot be said that the appointment of the employees in the present set of appeals 17 (2017) 8 SCC 670 : ( AIR 2017 SC 3271 : 2017 Lab IC 3649) were irregular appointments. Such appointments are illegal appointment in terms of the ratio of Supreme Court judgment in Uma Devi. As such appointments were made without any sanctioned post, without any advertisement giving opportunity to all eligible candidates to apply and seek public employment and without any method of recruitment. Such appointments were backdoor entries, an act of nepotism and favoritism and thus from any judicial standards cannot be said to be irregular appointments but are illegal appointments in wholly arbitrary process." 28. Making a specific reply in so far as WP(C) No. 4943/2017 (Pulak Kalita and Ors. v. State of Assam) is concerned, Shri Saikia submits that in the affidavit-in-opposition filed, it has been specifically pleaded that entry of the petitioners into the services as SWs were fraudulently done by taking recourse of forgery and manipulation. It has been pointed out that the documents related to this case which are part of the records would ex facie show that there has been manipulation. It has further been averred that the subsequent action of reinstatement have been done in a fraudulent manner in which certain higher officials have also acted as accomplice. It is reiterated that necessary police cases have been filed and trial going on against the erring officials. 29. Shri Goswami, learned Senior Counsel rejoins by submitting that sufficient time (more than five years) has elapsed since the date of the appointment and it is wholly unreasonable to accept that in this period of long five years, nothing fraudulent was detected insofar as the appointments of the petitioners are concerned. If at all the appointments were fake, salaries could not have been paid to the petitioners which continued till almost the time of their termination. If at all the appointments were fake, salaries could not have been paid to the petitioners which continued till almost the time of their termination. In that view of the matter, it is difficult to accept that there has been any fake appointment of the petitioners. The learned senior Counsel further submits that there is a vast difference between a verification process and a step to terminate the services. Though the entire exercise was termed as a verification process, the same was a pre-motivated one with the only objective to terminate the services of the petitioners who were appointed at a particular period of time. Specifically dealing with the district of Dibrugarh, the learned Senior Counsel has reiterated that there were compelling circumstances which were known to the authorities for which, the original documents could not be submitted and simply because of that one cannot come to a conclusion that the appointment orders were fake. It has also been argued that in a given situation when the situation is emergent, the strict Rules of recruitment may not be adhered to. The learned Senior Counsel goes to the extent that failure to have a proper recruitment process would ipso facto not rendered the appointments fake and there can at best be some irregularities; and if for this reason, the appointments are cancelled, a fresh recruitment should be held confining the same to the candidates who had lost their jobs. The learned senior Counsel categorically submits that no attempt has been made to come to a conclusive finding as to whether the appointments of the petitioners were fake and it is only on tentative basis that the impugned action has been taken which has deprived the petitioners from their right to livelihood. 30. The learned senior Counsel further relies upon the following decisions of the Hon'ble Supreme Court in- (i) Krishan Yadav v. State of Haryana, reported in (1994) 4 SCC 165 : ( AIR 1994 SC 2166 ): (1994 AIR SCW 2373); (ii) Pritpal Singh v. State of Haryana, reported in (1994) 5 SCC 695 : ( AIR 1995 SC 414 :1994 AIR SCW 4622); and (iii) Ravi Pal and Ors. v. Krishna Devi and Anr., reported in (2001) 10 SCC 227 . 31. v. Krishna Devi and Anr., reported in (2001) 10 SCC 227 . 31. Krishan Yadav ( AIR 1994 SC 2166 ) : (1994 AIR SCW 2373)(supra), has been cited for the purpose of future recourse in similar cases of cancellation of appointments. For ready reference, the relevant paragraphs are extracted herein below:- "21. The effect of setting aside the selection would mean the appointments held by these 96 candidates (including the respondents) will have no right to go to the office. Normally speaking, we should require them to disgorge the benefit of these ill-gotten gains. That means they will have to repay the entire salary and perks which they have received from the said office. But, here we show a streak of sympathy. For more than 4 years they were enjoying the benefit of "office". The proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could never pay. 22. The next question is what is the future course of action? It is hereby ordered: (i) A fresh selection shall be made for 96 posts of Taxation Inspectors. (ii) All candidates who had applied in response to Advertisement No. 3 dated 7-7-1988 and who were found eligible will be entitled to take such an examination. (iii) The total marks for written examination shall be 200. (iv) The total marks for viva voce shall be 25 that is not more than 12½ per cent, as has been laid down in Mohinder Sain Garg v. State of Punjabi with reference to the very post. (v) The advertisement announcing the fresh examination shall be issued immediately, fixing the last date as 30-6-1994. (vi) Intimation as to the acceptance of applications and the schedule of the examination shall be given on or before 16-8-1994. (vii) The examination shall commence in as many centres as required from 1-9-1994. (viii) The evaluation shall be completed before 31-10-1994. (ix) The marks obtained shall be published in three prominent dailies having large circulation in the State of Haryana in addition to the display on the Notice Board. (x) The number of candidates called for viva voce shall not exceed three times the number of posts to be filled. (xi) The viva voce shall commence from 7-11-1994 and be completed by 25-11-1994. The final analysis of the tabulated results shall be submitted to this Court on or before 10-12-1994. (x) The number of candidates called for viva voce shall not exceed three times the number of posts to be filled. (xi) The viva voce shall commence from 7-11-1994 and be completed by 25-11-1994. The final analysis of the tabulated results shall be submitted to this Court on or before 10-12-1994. We make it clear that not one of the persons connected with the present examination shall be allowed to have anything to do with the previous examination. We expect strict compliance with this order. Under no circumstances will there be an extension of time in this regard. The State shall endeavour its best to see that the examinations are conducted fairly without giving any room for any complaint. If necessary, it could have an independent body or agency in order that it may infuse confidence and make people believe that the misdeeds complained of in this case constitute an isolated chapter and a thing of past. (xii) Since we have accepted the CBI report we direct that necessary prosecutions be launched early against all concerned however high or low they may be in the hierarchy of officialdom. The State Government will do well to grant the necessary sanctions if so required without undue delay. The Chief Secretary of the State of Haryana shall pay his best attention to this." 32. Pritpal Singh ( AIR 1995 SC 414 :1994 AIR SCW 4622) (supra), has been cited for the similar purpose and the relevant extracts are quoted herein below:- "21. The appeals are allowed. The orders of the Division Benches under appeal and the judgment and order of the learned single Judge dismissing the writ petitions are set aside. The writ petitions are made absolute in the following terms: The selections made by the Board of sub-Inspectors of Police consequent upon the advertisement dated 21-1-1988, as also the appointments made by the State of Haryana pursuant thereto are quashed. 22. A fresh selection shall be made by the Board for the 98 posts of Sub- Inspectors of Police for which the Board had at the relevant time received requisitions from the State Government. All candidates who had applied pursuant to the advertisement dated 21-1-1988, and who were found eligible shall be entitled to appear for the written examinations, the total marks whereof shall be 200. Those who are successful shall then appear for a physical test. All candidates who had applied pursuant to the advertisement dated 21-1-1988, and who were found eligible shall be entitled to appear for the written examinations, the total marks whereof shall be 200. Those who are successful shall then appear for a physical test. Having regard to the fact that the candidates are now around the age of 30, the Inspector General of Police of the State of Haryana or an officer of equivalent rank shall, having regard to this age, prescribe appropriate physical requirements. Those candidates who are found to possess these physical requirements shall be called for interview, the marks whereof shall be 25. Candidates who are successful at the interview shall be required to submit to physical tests, namely, two races and two jumps, the particulars of which shall also be prescribed by the Inspector General of Police or equivalent authority having regard to the age aforesaid." 33. Ravi Pal and Ors. (supra), has also been cited in support of the aforesaid submission of affording another opportunity to the candidates who had lost their jobs. 34. The rival contentions of the learned counsel have received thoughtful considerations from this Court. The records placed before this Court by Shri B. Gogoi, learned Standing Counsel, Health and Family Welfare Department have also been carefully examined. 35. Though the grievance of the petitioners is against termination of their services as SWs, what intrigues the mind of this Court is that in none of the writ petitions, any averment whatsoever has been made regarding the mode of recruitment of the petitioners as SWs, not to talk about annexing the relevant documents pertaining to such recruitment process which would include advertisement, call letters, select list etc. There is gross inconsistencies with regard to the dates of purported entry into the services. Whereas averments have been made that petitioners were engaged as per scheme for the period 2010-2015, the petitioner No. 1 in WP(C) No. 4341/2017 has stated that he was appointed in the year 2006. At the same time, there is a categorical averment made on behalf of the State that there were no appointments of SWs for the period 2010-2015. Whereas averments have been made that petitioners were engaged as per scheme for the period 2010-2015, the petitioner No. 1 in WP(C) No. 4341/2017 has stated that he was appointed in the year 2006. At the same time, there is a categorical averment made on behalf of the State that there were no appointments of SWs for the period 2010-2015. This Court has also noted the categorical submission of Shri Saikia, learned Senior Counsel though there is a cadre of SWs which has been incorporated by the "Assam Vector Borne Disease Order, 2006" (Amended in 2010), none of the petitioners have been appointed against any such cadre. This Court has also noticed that the only document which few of the petitioners have annexed to show their employment are transfer orders. However, on detection of gross anomalies by the Vigilance Cell of the Hon'ble Chief Minister, Assam in the issue of appointment of SWs, elaborate verification process was undertaken in which no supporting documents could be produced by the petitioners and the documents so produced appear to be fake and concocted. It is also noted that the transfer orders which some of the petitioners have tried to relied upon were procured by taking recourse to manipulation and fraud in which process, many officers of the Department were also involved against whom police cases have been lodged and they are facing trial. 36. No convincing answer appears to have been given on behalf of the petitioner with regard to the specific allegation that all appointments were fake. On the other hand, the grounds for challenging the order of termination are mainly technical in nature wherein immense emphasis has been given on adherence to the principles of natural justice. Nonetheless, this Court has to bear in mind that while exercising powers under Article 226 of the Constitution of India, this Court exercises equitable jurisdiction and is required to examine the conduct of the person who has approached the Court for justice. 37. A perusal of the records does not disclose that there was any mala fide intention against the petitioners and the action taken is common and general without there being any scope of discrimination. 37. A perusal of the records does not disclose that there was any mala fide intention against the petitioners and the action taken is common and general without there being any scope of discrimination. The action impugned is a sweeping one which covers the entire State and the bona fide on the part of the authorities become more prominent by virtue of the fact that it is not only the petitioners against whom civil action has been taken but many other officers of the Department who were in connivance with the petitioners against whom not only disciplinary action but police cases have also been lodged against them. 38. The Court finds force in the arguments of the learned State Counsel that no legally enforceable rights accrue to a person who is inducted in the service by fraudulent means and such persons are not entitled to the protection under the Constitution of India. 39. As regards the submission made on behalf of the petitioners that they are entitled to the protection under the Assam (Discipline and Appeal) Rules, 1964, this Court is of the opinion that the Rules are applicable to a person who has been appointed in accordance with the Rules. The principles of the Rules may also be applicable to a person who is not appointed against a cadre post but cannot extend to a person who enters into the service by fraudulent means. In that view of the matter, seeking protection of the Rules in the form of initiating a disciplinary proceeding before termination will not be applicable for such persons. 40. Much stress have been laid on the fact that the competent authority, namely, the Director of Health Services did not apply his independent mind before passing the impugned orders of termination of services of the petitioners and the same was done at the dictate of some other authority. In this regard, it is to be examined who this 'other authority' is? It is an admitted fact that the other authority is none but the Government itself which shall acted after gross anomalies were detected by the CM Vigilance Cell in the process of induction of large number of persons as SWs in the Department. In this regard, it is to be examined who this 'other authority' is? It is an admitted fact that the other authority is none but the Government itself which shall acted after gross anomalies were detected by the CM Vigilance Cell in the process of induction of large number of persons as SWs in the Department. Further, the instructions were issued only after thorough scrutiny of all such cases of entry into the services which was possible only by the connivance of a number of senior officers of the Department and the Directorate, including the then Director of Health Services against whom even criminal cases have been instituted and trial is pending. Therefore, in the opinion of this Court, the aforesaid submission made on behalf of the petitioners cannot be countenanced. 41. A further submission has been made alleging discrimination while treating the petitioners with those of officers of the Department as well as Grade-IV employees. It has been submitted that while for such incumbents of the Department, disciplinary proceedings have been initiated whereas no such proceedings have been initiated against the petitioners before issuing the orders of termination. The said submission is not liable to be accepted inasmuch as there is a vast difference between the petitioners and the other officers and Grade-IV employees of the Department, particularly with regard to the mode of entry into the services. Whereas, such incumbents of the Department are members of the Cadre against whom there is allegation of misconduct of facilitating induction of the petitioners into the services by fraudulent means, the petitioners are not members of the Cadre. As has been held above, the petitioners are not entitled to any protection under the Rules of 1964. Therefore, the question of discrimination would not arise. 42. It has also been submitted that the impugned orders having adverse civil consequences qua the petitioners, there was a requirement to follow the principles of natural justice by giving adequate opportunities. However, it is seen that the Scrutiny Committees constituted by the Government had given adequate opportunity to the petitioners to establish that they had entered into the services in accordance with law which the petitioners had failed to do. Even before this Court, no documents have been placed to show a valid recruitment process through which the petitioners were inducted into the services as SWs. Even before this Court, no documents have been placed to show a valid recruitment process through which the petitioners were inducted into the services as SWs. Therefore, the plea of violation of the principles of natural justice, cannot be accepted which otherwise would also amount to a useless formality. At this stage, one may gainfully refer to the decision of the Hon'ble Supreme Court in the case of Aligarh Muslim University and Ors. v. Mansoor Ali Khan, reported in (2000) 7 SCC 529 : ( AIR 2000 SC 2783 ) : (2000 AIR SCW 2976) : (2000 All LJ 2436) wherein it was laid down as follows:- "As pointed recently in M.C. Mehta v. Union of India (1999) 6 SCC 237 : (ATR 1999 SC 2583) : (1999 AIR SCW 2754) there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Government of Andhra Pradesh [ 1966 (2) SCR 172 : AIR 1966 SC 828 ], it is not necessary to quash the order merely because of violation of principles of natural justice. In M.C. Mehta it was pointed out that at one time, it was held in Ridge v. Baldwin (1964 AC 40) that breach of principles of natural justice was in itself treated as prejudice and that no other 'de facto' prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor v. Jagmohan (1980) 4 SCC 379 : ( AIR 1981 SC 136 ), Chinnappa Reddy, J. followed Ridge v. Baldwin and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer. Chinnappa Reddy, J. in S.L. Kapoor's case, laid two exceptions (at p. 395) namely, " if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India (1984) 1 SCC 43 : ( AIR 1984 SC 273 ) : (1983 Lab IC 1680), Sabyasachi Mukherji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non- issue of notice) had to be proved. It was observed: quoting Wade Administrative Law, (5th Ed. PP. 472-475) as follows: (para 31) "....it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent....There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth". Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma (1996) 3 SCC 364 : ( AIR 1996 SC 1669 ): (1996 AIR SCW 1740). In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. (1996) 5 SCC 460 : ( AIR 1996 SC 2736 ): (1996 AIR SCW 3424)." 43. In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. (1996) 5 SCC 460 : ( AIR 1996 SC 2736 ): (1996 AIR SCW 3424)." 43. The last leg of submission on behalf of the petitioner was that in a given situation of emergency, Recruitment Rules may not be adhered to and further in case of upholding the decision of the Government to terminate the services of the petitioners by this Court, the future recruitment for the post of SWs should be confined to the petitioners only. Both the aforesaid submissions cannot be accepted as no emergent situation was existing requiring bypassing of the Rules for inducting the petitioners as SWs and it is not even the pleaded case that induction of the petitioners was done under such conditions. The second prayer also cannot be accepted for more than one reason. None of the posts where the petitioners were inducted are existing posts not to talk about cadre post. Secondly, it would be the prerogative of the Government to initiate a recruitment process based on the needs and other requirements and the same cannot be directed in the form of Mandamus. 44. This Court has also been informed that in the present proceedings, an order was passed on 24.07.2017 for payment of salary to the petitioners from January, 2017 to June, 2017. However, the said order has been stayed by the Hon'ble Division Bench vide order dated 22.05.2018, passed in WA No. 232/2017. Since, this Court has come to a finding that the petitioners are not entitled to any relief, their claim for salary for the aforesaid period is also rejected. 45. In view of the aforesaid discussions, facts and circumstances and considering the relevant law laid down by the Hon'ble Supreme Court, this Court is of the opinion that no case for invocation of the equitable jurisdiction of this Court conferred by Article 226 of the Constitution of India. According, all the writ petitions are dismissed. 46. No costs.