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2023 DIGILAW 1524 (ALL)

Manoj Kumar Rai v. State of U. P.

2023-05-31

AJIT KUMAR

body2023
JUDGMENT : Hon'ble Ajit Kumar, J.- Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Dharmendra Singh, learned counsel for the petitioners and learned Standing Counsel apperaing for the State respondents. 2. Learned counsel for the respective petitioners in the connected matters have adopted the arguments of Sri Ashok Khare, learned Senior Advocate. 3. The petitioners have envoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India asking for a judicial review of the decision taken by the State Government under its order dated 16.3.2017 to dispense with the services of all those drivers who were appointed in violation of the provisions contained under the U.P. Subordinate Services Selection Commission Act, 2014 and the Government Order dated 18.12.2014. 4. The reason assigned in the order impugned is that all such selections were made wholly illegally for want of authority and, therefore, appointments deserved to be cancelled. The Government Order that has been relied upon in the order passed by the Secretary to the State Government is the one which provided that all the posts falling in Group-C in the pay band of ''Rs.5200-20,200/-'' Grade Pay Rs. 1900 and above but below pay band of ''Rs.9300-Rs.34,800/-'', Grade Pay Rs. 4600/-, would fall within the purview of U.P. Subordinate Services Selection Commission created under the U.P. Subordinate Services Selection Commission Act, 2014 (Act No. 20 of 2014) notified by the State Government vide gazette notification dated 4.12.2014. The Government Order also provided for all the Chief Secretaries and the Secreteries of the Government of Uttar Pradesh to make requisition of all such available vacancies by 5.1.2015. Every details of reservation etc. both vertical and horizontal were also required to be taken note of. It is pursuant to the order passed on 16.3.2017 impugned in the writ petition that consequential order has been passed by the Director (Administration), Medical and Health Services, Uttar Pradesh, Lucknow on 3.4.2017. 5. Learned Senior Counsel appearing for the petitioners, has raised two fold arguments for assailing the order: (I). It is pursuant to the order passed on 16.3.2017 impugned in the writ petition that consequential order has been passed by the Director (Administration), Medical and Health Services, Uttar Pradesh, Lucknow on 3.4.2017. 5. Learned Senior Counsel appearing for the petitioners, has raised two fold arguments for assailing the order: (I). The appointments to the post in question are governed under U.P. Government Department Driver Service (3rd Amendment) Rules, 2013 which have been framed under proviso to Article 309 of the Constitution and since the Rules are still in force, by no means of a Government Order, such rules can be overidden or repealed or even any provision thereof and hence the respondents were not justified in passing the order holding the appointments in question to be illegal only for reason that such posts were required to be requisitioned to the U.P. Subordinate Services Selection Commission under a Government Order dated 18.12.2014; and (II). The petitioners were bona fide applicants against duly advertised vacancies and have been appointed after undergoing the selection process which was held as per the procedure prescribed under the Rules and, therefore, the services of the petitioner could not have been terminated by an executive fiat and that too without complying with the principles of natural justice. 6. Per contra, it has been argued by learned Standing Counsel that I). Once the State Government had enacted a law passed by a competent legislature to make selection as per the procedure prescribed therein and the fact that the Board had been constituted, the requisitioning of the vacancies to the Board was only a ministerial act and so the Recruitment Rules would be taken to have been superseded to the extent provided for under an Act passed by a competent legislature. (II). It is also argued by learned Standing Counsel that since the power to make appointments on Group-C posts falling in a particular pay band and pay grade vested with the Commission constituted under the Act No. 20 of 2014, any appointment made by an authority upon a recommendation made by an authority other than the Commission, would be illegal for want of lawful authority. Learned Standing Counsel submitted that mere issuance of an appointment order asking for joining of the candidate would not result in making their appointments lawful and regular. Learned Standing Counsel submitted that mere issuance of an appointment order asking for joining of the candidate would not result in making their appointments lawful and regular. It is argued that the conduct and act of the authority in making the appointments was not merely irregular but illegal. (III). On the question of non-compliance of principles of natural justice, learned Standing Counsel argued that principle would not be attracted in those cases where an action itself is void ab initio. It is argued that merely because someone has got enriched or benefitted for an illegal act which was null and void, holding a consequential action to be non est for the same reason, would not be rendered bad just for want of compliance of principles of natural justice. He submitted that the principles of natural justice cannot be put into straight jacket formula so as to apply in every case as a common yardstick. 7. Having heard learned counsel for the parties and their arguments raised across the Bar and having perused the records, in the first instance, I find it necessary to refer to the undisputed facts of the case in brief. 8. U.P. Government Department Driver Service Rules, 1993 were framed under the proviso to Article 309 of the Constitution provide for direct recruitment. vide Rule 17 of the said Rules a Selection Committee is contemplated with the appointing authority as its Chairman and three other members. The mode of recruitment is to call for interview and driving test and the merit list is to be prepared taking together the skilled test marks obtained in driving skill as per performance in the driving test and that of the interview, taken together. Upon a merit list so prepared, the appointments have to be made firstly on probation for a period of two years to be followed by confirmation. These rules came to be amended further on 14.10.2013 to be called as U.P. Government Department Driver Service (3rd amendment) Rules, 2013, laying down the norms qua number of vacancies and further modifications to the promotion rules already existing under the Rules in the primary cadre and then in different grades. Further the re-organisation of different grades of post of drivers have taken place with amendment made and notified on 4.1.2017. 9. Further the re-organisation of different grades of post of drivers have taken place with amendment made and notified on 4.1.2017. 9. It is also worth pertinent to mention here that these above 1993 rules were made applicable to the Department of Medical, Health and Family Welfare by notification issued in that regard. 10. It is by taking recourse to the above provisions contained under the driver service rules that Chief Medical Officer, Ballia advertised vacant positions of drivers in different categories like general, OBC and SC & ST on 11.9.2015 published in widely circulated news dailies Aaj, Amar Ujala and Hindustan. The petitioners who were eligible, applied against the posts in question. Through press release dated 2.2.2016 scheduling of interview and driving test was done for different categories in different dates. 11. The Chief Medical Officer, Ballia had already asked the District Magistrate under his letter dated 2.1.2016 to nominate a member to the selection committee and the District Magistrate, appears to have nominated Dr. Rajnath, Deputy Chief Medical Officer to the selection committee on 11.1.2016. 12. The Additional Director, Medical Health Services, Azamgarh Division, Azamgarh was also requested to nominate a member by Chief Medical Officer, Ballia vide his letter dated 6.2.2016. It appears that an allegedly constituted Selection Committee proceeded to hold driving test as well as interview of the candidates and prepared a merit list which included the names of the petitioners and forwarded the same to the District Magistrate for necessary perusal and approval on 4.3.2016. The District Magistrate seems to have given his nod to the selection and consequently the appointment orders were issued to the petitioners on 5.3.2016. While the petitioners were given posting by the Chief Medical Officer at different places under him like petitioner Manoj Kumar Rai was given posting at Epilepsy Control Unit, Rasra and was to report to the Superintendent of Community Health Centre, Rasra. He gave his joining on 18.3.2016. It appears that upon question of payment of salary and necessary communication being made to the higher authorities, the matter came to be reported to the State Government as the different petitioners were also requesting for payment of salary after having given joining and resumed working. He gave his joining on 18.3.2016. It appears that upon question of payment of salary and necessary communication being made to the higher authorities, the matter came to be reported to the State Government as the different petitioners were also requesting for payment of salary after having given joining and resumed working. The State Government in response to the letter of the Director (Administration), Medical and Health Services vide order dated 16.3.2017 held appointments of all these drivers to be against the Act, 2014 and the Government Order and, therefore, illegal and directed for immediate cancellation of such appointments. 13. The consequential orders were passed by the Director (Administration), Medical, Health and Family Welfare, Uttar Pradesh, Lucknow on 3.4.2017 and the petitioners were accordingly informed. Petitioners approached this Court by means of present petitions in some of which interim order had been granted initially that if they had been made to join they would continue to work and would be paid salary. 14. In support of the arguments advanced on behalf of the petitioners, Mr. Khare, learned Senior Advocate has argued that in the hierarchy of law a Government Order comes below the subordinate and delegated legislation and, therefore, cannot overide or repeal the rules framed under proviso to Article 309 of the Constitution. He has relied upon a judgment of the Supreme Court in the case of Government of Andhra Pradesh v. Smt P. Lakshmi Devi, 2008 (4) SCC 720 , where the Court delebrated on the point of hierarchy of law and placed the Government Order below the Rules and Regulations framed under a statute. On the question of implied repeal, Mr. Khare submitted that even that principle cannot be attracted for want of competence. He submits that Rules framed under Proviso to Article 309 would not be alterable or subject to any modification by means of a Government Order. He has also relied upon the judgment in the case of State of Uttar Pradesh v. Dayanand Chakravorty and others, 2013 (7) SCC 595 and an earlier judgment of the Supreme Court in the case of Chandra Prakash Tiwari and others v. Shakuntala Shukla and others, (2002) 6 SCC 127 . 15. On non-compliance of principles of natural justice, Mr. He has also relied upon the judgment in the case of State of Uttar Pradesh v. Dayanand Chakravorty and others, 2013 (7) SCC 595 and an earlier judgment of the Supreme Court in the case of Chandra Prakash Tiwari and others v. Shakuntala Shukla and others, (2002) 6 SCC 127 . 15. On non-compliance of principles of natural justice, Mr. Khare has argued that a candidate who has been duly selected and appointed and given joining deserved atleast an opportunity to defend his case and, therefore, holding the appointment illegal and thereby dispensing with the services of the petitioner without opportunity of hearing, would be unfair and an arbitrary exercise of power and would be hit by Article 14 of the Constitution. He has relied upon a judgment in the case of Mahipal Singh Tomar v. State of U.P. and others, (2013) 16 SCC 771 . For the same ground he has also relied upon a judgment of the High Court in the case of Ashwini Kumar and others v. State of Bihar and others, 1997(2) SCC 1 . 16. While dealing with the above arguments it becomes apt first to look into the Act No. 20 of 2014 which has become the cause for holding the appointments in question to be invalid. vide Sub-section 2 of Section 1 of Act No. 20 of 2014 the act has been made enforceable with effect from 20.6.2014. vide Section 2 of the Act it has been made applicable in relation to direct recruitment to all Group C posts including the post in Civil Secretariat and also Group C posts in a Board or Corporation or any other statutory body established by or controlled by the State. Proviso to Sub-Section 2 empowers the Government to withdraw from or add any post within the purview of the Commission. Clause 'C' of Section 4 defines Group C posts as posts specified as such by the Government from time to time. 17. For appreciating what I have observed above, Sub-section 1, 2, 3 and 4 of Act 20 are reproduced hereunder: ''1-(1) This Act may be called the Uttar Pradesh Subordinate Services Selection Commission Act, 2014. (2) It shall come into force on June 20,2014. 2. 17. For appreciating what I have observed above, Sub-section 1, 2, 3 and 4 of Act 20 are reproduced hereunder: ''1-(1) This Act may be called the Uttar Pradesh Subordinate Services Selection Commission Act, 2014. (2) It shall come into force on June 20,2014. 2. The provisions of this Act shall apply in relation to direct recruitment to all Group 'C' posts below Group 'B' posts including posts in the Civil Secretariat and also to all Group 'C' posts in a Board or a Corporation or any other statutory body established by or controlled by the State Government : Provided that the State Government may, by notification, withdraw from or add any post in the purview of the Commission. 3. Nothing in this Act shall apply to recruitment to any post- (a) in the Secretariat of each House of the State Legislature; (b) under the High Court or a Court subordinate thereto; (c) under the State Public Service Commission; (d) under the Lok Ayukt appointed under the Uttar Pradesh Lok Ayukt and Up-Lok Ayukt Act,1975; (e) Governed by the Police Act,1861. 4. In this Act unless the context otherwise requires- (a) 'Appointing authority', in relation to any service or post, means the authority empowered to make appointment to such service or post; (b) 'Commission' means the Uttar Pradesh Subordinate Services Selection Commission established under Section 5; (c) 'Chairperson' means the Chairperson of the Commission; (d) 'Group 'C' post' means the post specified as such by the State Government from time to time; (e) 'Member' means a Member of the Commission and includes the Chairperson; (f) 'Other backward classes' means the backward classes specified in Schedule-1 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act,1994; (g) ''Secretary'' means the Secretary of the Commission; (h) 'Year of recruitment' means the period of twelve months commencing on the first day of July of the Calendar year in which the recruitment is to be made.'' (Emphasis added) 18. Section 5 contemplates constitution/establishment of a commission and it is admitted to the parties that Uttar Pradesh Subordinate Services Selection Commission had already come into existence and had been working as on the date of selection and appointments in question. Section 5 contemplates constitution/establishment of a commission and it is admitted to the parties that Uttar Pradesh Subordinate Services Selection Commission had already come into existence and had been working as on the date of selection and appointments in question. Looking to and appreciating Section 2 and proviso to the same as quoted above it is apparent that all Group-C posts below Group-B posts of the State Government but for the exceptions under Section 3, fall within the purview of Subordinate Service Commission and so with effect from 20.6.2014 and with the establishment of the Commission under the Act, none of the authorities in the State would be entitled to make recruitment upon the Group C posts. Section 17 and 18 of the Act provide for notification of vacancies by the appointing authorities under the relevant rules and then making appointments upon the recommendation made to the respective appointing authorities by the Commission. Sections 17 and 18 of the Act are reproduced hereunder: ''17.(1)The appointing authority shall determine and intimate to the Commission the number of vacancies to be filled through the Commission during the course of the year of recruitment as also the number of the vacancies to be reserved for the candidates belonging to the Scheduled Casts and the Scheduled Tribes and other categories in accordance with the law for the time being in force in this behalf. (2) The vacancies shall be notified to the Commission in such manner as may be prescribed. 18. (1) The Commission shall, as soon as possible after the intimation of vacancies under Section 17, hold examination or interview or both and prepare in such manner as may be prescribed a list of the candidates who are found suitable. (2) The list referred to in sub-section (1) shall be forwarded to the appointing authority and the appointing authority shall make appointments from the list so forwarded to it in the order mentioned therein.'' (Emphasis added) 19. Taking aid of proviso to Section 2 read with Clause (d) of Section 4 and 17(2) of the Act, it appears that State Government issued a notification dated 15.12.2014 prescribing for all the vacancies of pay band 1 (Rs.5200-20,200/-) grade pay Rs. 1900/- and above but below pay band 2 (Rs.9300-34,800/-) grade pay Rs. 4600/- to fall within the purview of Subordinate Service Selection Commission. 1900/- and above but below pay band 2 (Rs.9300-34,800/-) grade pay Rs. 4600/- to fall within the purview of Subordinate Service Selection Commission. This notification is referable to proviso to Section 2 readwith Clause (d) of Section 4. 20. This notification was preceded by a notification dated 20.11.2014 constituting the commission. The notification to constitute the commission was issued with reference to Section 5 of the Act. Section 5 of the Act No. 20 of 2014 is reproduced hereunder: ''5.(1) On and from such date as the State Government may, by notification, appoint in this behalf, there shall be established a Commission to be known as the Uttar Pradesh Subordinate Services Selection Commission. (2) The Services of every whole time employee of the Commission established under the provisions of the Uttar Pradesh Subordinate Services Selection Commission Act, 2006 (U.P. Act no 1 of 2006) serving in that Commission immediately before the commencement of this Act shall stand transferred to the Commission on and from the establishment thereof. '' (Emphasis added) 21. It is after the aforesaid two notifications were issued that State Government issued a Government Order dated 18.12.2014 directing all Principal Secretaries/Secretaries of the State Government requesting them to make available requisitions in respect of all such available vacancies within the aforesaid prescribed pay bands by 5.1.2015 annexing therewith also the service rules relating to the posts and vertical and horizontal reservations as applicable may also be clarified. The authorities were also directed to seek necessary guidance if need be and all these details and documents were required to be submitted in the camp office of the commission by 26.12.2014. A format was also appended to the Government Order. 22. For better appreciation, the Government Order 18.12.2014 is reproduced hereunder in its entirety: 23. Thus from the above it is clear that after coming into force of Act No. 20 of 2014 on 20.6.2014, the Commission came to be constituted on 20.11.2014 and the posts got identified within particular pay bands to be Group C posts vide notification issued on 15.12.2014. These notifications having been issued under the State enactment passed by the competent legislature, could be taken to be one within the power so prescribed under the Act. The Government Order dated 18.12.2014 by no means can be read as a Government Order issued in supersession to the rules framed under proviso to Article 309 of the Constitution. These notifications having been issued under the State enactment passed by the competent legislature, could be taken to be one within the power so prescribed under the Act. The Government Order dated 18.12.2014 by no means can be read as a Government Order issued in supersession to the rules framed under proviso to Article 309 of the Constitution. The Government Order was issued only to facilitate requisitioning of the vacant positions after determination by the respective head of the departments through their Secretaries concerned as per provision contained under Section 17 of the Act No. 20 of 2014. 24. Now, I proceed to examine the question as to whether even after coming into force of Act No. 20 of 2014, the appointing authority concerned under the relevant rules could have proceeded to make appointments on its own without notifying the vacancies to the Commission. 25. As I have already observed above that the Commission Act had come into force on 20.6.2014 and the Commission also came to be constituted on 20.11.2014 as per Section 5 of the Act and the Group C posts also came to be specified by the State Government vide notification issued under Clause (d) of Section 4 of the Act, as per mandate contained under Section 2 of the Act, the only competent authority to make selection on such Group 'C' post as on 15.12.2014 would have been the Uttar Pradesh Subordinate Services Selection Commission in the light of the provisions contained vide Section 18(1) of Act No. 20 of 2014,. 26. Now on the issue as to whether by Government Order dated 18.12.2014 could override the service rules of 1993 and even after it being amended from time to time whether such rules have stood superseded or the relevant provisions contained under the rules prescribing mode of selection and appointment could be taken to be impliedly repealed, I would here refer to the point of hierarchy of law as argued by Mr. Khare. In the Government of Andra Pradesh case (supra) Supreme Court has discussed this point and vide paragraph 34 the hierarchy of law has been laid down. Paragraph Nos. 34 and 35 of the judgment are reproduced hereunder: ''34. Khare. In the Government of Andra Pradesh case (supra) Supreme Court has discussed this point and vide paragraph 34 the hierarchy of law has been laid down. Paragraph Nos. 34 and 35 of the judgment are reproduced hereunder: ''34. In India the Grundnorm is the Indian Constitution, and the hierarchy is as follows : (i) The Constitution of India; (ii) Statutory law, which may be either law made by Parliament or by the State Legislature; (iii) Delegated legislation, which may be in the form of Rules made under the Statute, Regulations made under the Statute, etc.; (iv) Purely executive orders not made under any Statute. 35. If a law (norm) in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the Directive Principles which, by Article 37, have been expressly made non enforceable).'' 27. Neither there is any quarrel about the above principles, nor there are two opinions to be chosen which one to be better. In the hierarchy of law the rules will stand in preference to Government Orders and, therefore, Government Order cannot overide or otherwise can be said to have impliedly repealed the rules. The rules framed under proviso to Article 309 are by way of delegated legislation and in respect of State, the Government is vested with the authorities to frame rules but proviso to Article 309 at the same time reserves the right of the appropriate legislature to pass an enactment and such rules would continue until an enactment is passed by a competent legislature. Article 309 of the Constitution reads as under: ''309. Article 309 of the Constitution reads as under: ''309. Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act'' 28. In the present case, the 1993 recruitment rules as amended in the year 2013 were framed under proviso to Article 309 of the Constitution but with the passing of the Act No. 20 of 2014, an enactment by a competent legislature vesting power of recruitment qua Group C posts, with the Commission, the power of recruitment as vested under the rules namely, the Uttar Pradesh Government Department Drivers Service Rules 1993 would be rendered inoperative by virtue of the proviso to Article 309 itself and thus infact stood repealed. 29. Notification dated 20.11.2014 to constitute commission and notification dated 15.12.2014 that specifies the vacancies to fall within the purview of Commission were both issued by virtue of power exercised by the State Government under the Act, 2014. Both these notifications have not been challenged. 30. As far as the Government Order dated 18.12.2014 is concerned, this only issues directions to the Principal Secretaries and Secretaries of the department concerned to get the vacancies determined and notified to the Commission on a printed format appended therewith. So this Government Order also cannot be read as an order superseding the service rules. 30. As far as the Government Order dated 18.12.2014 is concerned, this only issues directions to the Principal Secretaries and Secretaries of the department concerned to get the vacancies determined and notified to the Commission on a printed format appended therewith. So this Government Order also cannot be read as an order superseding the service rules. The Government Order dated 18.12.2014 is just an executive directive in compliance of the mandate contained under the provisions of the Act, 2014 vide Section 17 thereof and since the Act is not under challenge, the delegated authority exercised under the Act will by itself not become bad. 31. In view of the above therefore, the Act passed by the State legislature would prevail over and above service rules framed under proviso to Article 309 of the Constitution and accordingly the Uttar Pradesh Government Department Driver Service Rules, 1993 as amended from time to time stood repealed by the Act No. 20 of 2014 to the extent of procedure prescribed for direct recruitment vide Rules 17 and 18 thereof. 32. The argument that the rules are still in force as have been amended from time to time and therefore, they would still prevail despite the Commission Act coming into force, neither appeals to reason, nor the argument is valid enough with reference to proviso to Article 309 of the Constitution and the provisions as contained in the Act No. 20 of 2014. Thus applying the very argument of hierarchy of law argued by Mr. Khare, learned Senior Advocate, the Act No. 20 of 2014 having been enacted by U.P. State legislature for holding selection upon Group 'C' posts as specified under notification dated 15.12.2014, would be taken to have repealed the Service Rules to that extent. 33. The very aim and object with which Act No. 20 of 2014 has been enacted is confined to the mode of direct recruitment and has nothing to do with the determination of vacancies, departmental promotion, seniority and disciplinary proceedings. It has been enacted only with a purpose to ensuring quality in selection, impartiality and transparency in selection and the Act has also been brought into force with a view to lessen the burden of U.P. Public Service Selection Commission. It has been enacted only with a purpose to ensuring quality in selection, impartiality and transparency in selection and the Act has also been brought into force with a view to lessen the burden of U.P. Public Service Selection Commission. The statement of objects and reasons as contained under the Act No. 20 of 2014 are reproduced hereunder: ''It is necessary to select able, worthy and hardworking personnel for appointment to certain posts in administrative departments of the State. It is also necessary to ensure the quality of selection, its impartiality and transparency in their selection. Though the institution of Uttar Pradesh Public Service Commission is present at Constitutional Level but owing to increased pressure on its working, difficulty is being realised regarding selection on Group 'C' posts. In near past, selection on Group 'C' posts was being done under the direct supervision of the State Government but Head of Departments had to devote much time for the above selections which is severely affecting the Government works as well as the works of public interest. Due to all these reasons, it is quite necessary to establish an independent Subordinate Services Selection Commission consisting of the Chairperson and Members similar to that of the Uttar Pradesh Public Service Commission for timely selection on certain Group 'C' posts. It has therefore, been decided to make a law to provide for the establishment of a Commission by the name of the Uttar Pradesh Subordinate Services Selection Commission for the selection on certain Group 'C' posts in the State. Since the State Legislature was not in session and immediate Legislative action was necessary to implement the aforesaid decision, the Uttar Pradesh Subordinate Services Selection Commission Ordinance, 2014 (U.P. Ordinance No. 5 of 2014) was promulgated by the Governor on June 02, 2014.The provision of the said Ordinance could not be introduced in the Legislature for unavoidable reasons and the said Ordinance was going to lapse after July 30,2014,the Uttar Pradesh Subordinate Services Selection Commission (second) Ordinance, 2014(U.P. Ordinance No. 7 of 2014) was promulgated by the Governor on July 28, 2014. This Bill is introduced to replace the aforesaid Ordinance No. 7 of 2014.'' 34. This Bill is introduced to replace the aforesaid Ordinance No. 7 of 2014.'' 34. Thus it is clear that except for selection and appointment through direct recruitment upon Group C posts as notified by the State Government under its notification issued on 15.12.2014, for all other purposes, the service rules 1993 as amended from time to time would continue to apply and in view of Article 309 and proviso contained therein both the Act No. 20 of 2014 and the Service Rules 1993 would continue to operate in their respective fields simultaneously. 35. In view of the above, the argument advanced by learned counsel for the petitioner that the service rules have been superseded or subjected to a Government Order is held to be misplaced one and is therefore, rejected. 36. The Court is of the considered view that since the Commission had already come to be constituted on 20.11.2014 and Group 'C' posts within a particular pay band got specified by issuing notification tracing its power under Act No. 20 of 2014, by the State Government which included the post in question of the Department of Medical Health and Family Welfare, to be specific within the appointing authority of the Chief Medical Officer in the instant case, the Chief Medical Officer was not competent enough to make selection and appointment on his own without notifying the vacancy to the Commission. The power to make selection was taken away with the enforcement of the Act No. 20 of 2014 on 20.6.2014 and with the constitution of Commission on 20.11.2014 and Group 'C' category posts having been specified on 15.12.2014 by the State Government. The provisions relating to direct recruitment under 1993 rules accordingly stood superseded as on 15.12.2014 and so, the proceedings undertaken by the Chief Medical Officer by advertising the vacancy on 11.9.2015 were void for want of lawful authority and so also consequential action pursuant thereto was equally void. The appointments, therefore, would stand void ab initio. 37. It is necessary to reproduce the entire letter written by the Director (Administration), Medical, Health Services of U.P. Lucknow, to Chief Secretary (counter-affidavit page 11). 38. It is pursuant to this above letter only that the Chief Secretary Government of Uttar Pradesh came to know that such illegal appointments have been made and, therefore, he cancelled all the illegal appointments and directed for an enquiry vide his order dated 16.3.2017. 38. It is pursuant to this above letter only that the Chief Secretary Government of Uttar Pradesh came to know that such illegal appointments have been made and, therefore, he cancelled all the illegal appointments and directed for an enquiry vide his order dated 16.3.2017. 39. As a consequence to this letter dated 3.4.2017 the Director (Administration), wrote a consequential letter asking CMO to immediately cancel all such appointments. The petitioners approached this Court and no doubt have obtained interim orders only on the point that they have not been given an opportunity to defend their case. 40. The law is well-settled that opportunity of hearing as a Principle of audi alteram partem cannot be put into a straight jacket formula to apply in every case ipso facto. It is always referable to a principle 'subject to circumstantial flexibility' and so looking to the facts and circumstances of each case. 41. In the case of Ashwin S. Mehta and another v. Union of India and others, (2012) 1 SCC 83 , dealing with the law relating to the principle of natural justice as a bedrock of administrative law vide paragraphs 40, 41 and 42 the Supreme Court has held thus: ''40. It is true that the rules of ''natural justice'' are not embodied rules. The phrase ''natural justice'' is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by any authority, irrespective of whether the power which is conferred on a statutory body or Tribunal is administrative or quasi-judicial. The concept of ''natural justice'' implies a duty to act fairly i.e. fair play in action. As observed in A.K. Kraipak v. Union of India, (1969) 2 SCC 262 , the aim of rules of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice. 41. In Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 , R.S. Sarkaria, J., speaking for the majority in a three-Judge Bench, lucidly explained the meaning and scope of the concept of ''natural justice''. Referring to several decisions, His Lordship observed thus: (SCC p. 666) ''Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. Referring to several decisions, His Lordship observed thus: (SCC p. 666) ''Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice viz. (i) audi alteram partem (ii) memo judex in re sua. The audi alteram partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the altar of administrative convenience or celerity. The general principle--as distinguished from an absolute rule of uniform application-- seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, Courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The Court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.'' (emphasis supplied by us) 42. The Court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.'' (emphasis supplied by us) 42. It is thus, trite that the requirement of giving reasonable opportunity of being heard before an order is made by an administrative, quasi judicial or judicial authority, particularly when such an order entails adverse civil consequences, which would include infraction of property, personal rights and material deprivation for the party affected, cannot be sacrificed at the alter of administrative exigency or celerity. Undoubtedly, there can be exceptions to the said doctrine and as aforesaid the extent and its application cannot be put in a strait-jacket formula. The question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred; the purpose for which the power is conferred and the final effect of the exercise of that power on the rights of the person affected.'' 42. One must understand that when facts are quite apparent and need no further investigation and it is a question of applicability of law that arises for consideration, the matter need not be remitted only for non compliance of natural justice. This Court has given ample opportunity to the learned Senior Advocate appearing for the petitioner to put his case and defend the appointments but he has argued only on hierarchy of law in order to appreciate that the Government order could not have overriding the statutory rules otherwise learned Senior Advocate could not dispute that the Commission Act is lawfully enacted. 43. I have already dealt with this issue and, therefore, in my considered view even post decisional hearing given to the learned Senior Advocate appearing for the petitioner would be sufficient in the given facts and circumstances of the case. 44. The Constitution Bench in the case of Charan Lal Sahu v. Union of India, AIR 1990 SC 1480 , has dealt with the issue of post decisional hearing also while observing that the principles of natural justice cannot be put into a cast iron formula. 44. The Constitution Bench in the case of Charan Lal Sahu v. Union of India, AIR 1990 SC 1480 , has dealt with the issue of post decisional hearing also while observing that the principles of natural justice cannot be put into a cast iron formula. vide paragraph 109 of its judgment Supreme Court has held thus: ''109. The fact that ……………….. the phrase 'natural justice' is not capable of static and precise definition. It could not be imprisoned in the straight-jacket or a cast-iron formula. Rules of natural justice are not embodied rules. Hence, it was not possible to make an exhaustive catalogue of such rules. This Court reiterated that audi alteram partem is a highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power. The rules of natural justice can operate only in areas not covered by any law validly made. The general principle as distinguished from an absolute rule of uniform application seems to be that where a statute does not in terms exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. If the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected the administrative decision after post-decisional hearing was good.'' 45. In a case like present one where the competence of the authority in making selection and appointment itself was in question, the petitioners possibly could not have put up any defence. Merely because an opportunity was not given, if matter is remanded today, it will not fetch any other result and as I have already held that the selection and appointments were void ab initio, the petitioners cannot claim any plea of bona fide to be retained in service for their innocence. The law is well-settled that if a thing is required to be done in a particular manner it should be done in that manner alone. The law is well-settled that if a thing is required to be done in a particular manner it should be done in that manner alone. If an authority is incompetent to carry out task merely because it has executed the task, the task will not be said to be a bona fide exercise of power more especially when plea of ignorance of law is no excuse. 46. As the legal maxim goes Expressio unius est exclusio alterius which means if a statute provides to be done in a particular manner then it has to be done in that manner alone and therefore, any other course will not be permissible and if it has been adopted, it will make the consequences action void ab initio. 47. This maxim has been reiterated time and again in various judgments of this Court as well as High Court. The Constitutional Bench of Supreme Court in the case of Sukhdev Singh and others v. Bhagatram Sardar Singh Raghuvanshi and another, (1975) I LLJ 399 SC, has very categorically held that ''the statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restrictions on the employer and the employee with no option to vary the conditions............In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies............Failure to observe requirements by statutory bodies is enforced by Courts by declaring (action) in violation of rules and regulations to be void.'' 48. This Court in the case of Kesari Devi v. State of U.P. and others, 2005(3) ESC 2209 (All)(DB), has held that statutory provisions are required to be given strict adherence and authority is bound to act in the manner prescribed under the statute. It is observed vide paragraph 92 of the judgment that ''when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It is observed vide paragraph 92 of the judgment that ''when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hitherto an uncontroverted legal position that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden.'' 49. In the case of Krishna Rai (Dead) through L.Rs. and others v. Banaras Hindu University through Registrar and others, AIR 2022 SC 2924 , referring to the judgment in the case of Tata Chemicals Ltd. v. Commissioner of Customs (Preventive), Jamnagar, 2015 (11) SCC 628 , the Supreme Court observed that there can be no estoppel against law. If the law requires something to be done in a particular manner then it must be done in that manner and if it is not done in that manner, then it would have no existence in the eye of the law. 50. It is equally worth interesting to note here that in response to the letter of Chief Medical Officer, Ballia dated 6.2.2016 written to Additional Director, Medical Health and Family Welfare, Azamgarh Divisioin, Azamgarh, no observer was appointed, nor it has come anywhere in the writ petition that any such observer was ever appointed. As a matter of fact, it appears that subsequently the Director (Administration), Medical and Health Services, U.P. Lucknow came to know that some appointment orders have been issued in a suspicious way by the Chief Medical Officer, Ballia and so he referred the matter to the Chief Secretary, Medical, Health and Family Welfare to take appropriate action in the matter. 51. If such appointments are continued upon plea of bona fides at the end of appointees, there will be no end to it. Every selection even if bad for want of authority would have to be upheld because in every case of public advertisement, applicants are bound to be bona fide applicants. In this case as a matter of fact, Chief Medical Officer has not only circumvented a statutory law in matters of selection of petitioners but also defeated the very purpose and object with which Act No. 20 of 2014 was enacted and brought into force. In this case as a matter of fact, Chief Medical Officer has not only circumvented a statutory law in matters of selection of petitioners but also defeated the very purpose and object with which Act No. 20 of 2014 was enacted and brought into force. No one can be permitted to be enriched or benefitted when the very source of his/her existence is null and void. However, since petitioners were selected and appointed and given joining seven years ago while some of them got stay orders and others could not and their selection and appointments are bad for illegal exercise of powers, they deserve to be compensated in terms of damages to be recovered from the officials guilty of such selection and appointments. It transpires that Chief Medical Officer was suspended but what happened thereafter is not known. Such officer must be booked for not only illegal act of befooling the innocent young people seeking jobs but committing breach of trust with the Government as well. 52. It is a case where the authorities responsible are liable to be visited with penalty. Court was informed during the hearing of the case that Chief Medical Officer was subjected to disciplinary proceedings but what happened in that proceeding was not disclosed. 53. The petitioners have really been made to suffer and the State is not only required to take action against the erring officials but also to ensure that they are appropriately prosecuted and punished. 54. Accordingly, while refusing to interfere with the orders impugned in these petitions, following directions are issued: (I). Petitioners having been paid salary under the interim orders passed by this Court in different petitions shall not be liable to any recovery. (II). State Government is directed to hold departmental enquiry against the erring officials including the Chief Medical Officer concerned and take appropriate action accordingly and in the event enquiry has already been conducted appropriate action be taken against the erring officials. (III). It is left open for the petitioners to claim damages as it is upon the misrepresentation and fraud on the part of the Chief Medical Officer concerned that they were made to apply against the post in question and were made to suffer. 55. Subject to what has been observed above, petition fails and is dismissed.