Full Judgment
N.K. Mitra, C.J. and S.R. Singh,J.
1. Cynosure of attention in the instant appeal is the judgment and order dated 11.2.1998 whereby the learned single Judge has allowed the writ petition and quashed the order dated 16.10.1984 passed by the Inspector General of Registration. U.P., which contained the direction to the District Registrar, Azamgarh to rescind the selection of the petitioners-respondents and the consequential order dated 14.12.1984 passed by the District Registrar, Azamgarh thereby terminating the services of the petitioners-respondents.
2. The facts of the case draped in brevity and beyond the pale of controversy are that the petitioners were selected for appointment pursuant to the written test held on 3.12.1981 followed by interview held on 13.12.1981. Appointment orders were duly issued in favour of the petitioner-respondents on varied dates as delineated in the judgment under challenge. The Inspector General of Registration. U. P., by his order dated 16.10.1984 directed the District Registrar to cancel the selection of the petitioners on the alleged ground that the selections were made in antagonism of the provisions engrafted in Rule 16 of the Subordinate Officers Ministerial Staff(Direct Recruitment) (4th Amendment)Rules, 1979 and also on the premisesthat the interview that followed thewritten test was besmirched withirregularities. The learned singleJudge held that the petitionerrespondents were appointed by theCompetent Authority studded with theapproval of the Head of theDepartment. i.e., the InspectorGeneral of Registration, U. P. and inpursuance of the appointment ordersissued in their favour, the petitioner-respondents were allowed to join theirduties on different dates betweenJanuary and April. 1982 and all ofthem endured in service for about 2-1/2 years when the impugned ordersdated 16.12,1984 and 14.12.1984came to be passed. The learnedsingle Judge held that the impugnedorders were passed without affordingopportunity of hearing to thepetitioner-respondents and furtherthat they have already put in about 18years of service and during this longspan of about two decades of service,when the entire complexion of theirfamilies must have undergone acomplete transition. It would be'nothing but an act of cruelty' to askthem to go out of the employment.The learned Standing Counselappearing for the appellantscanvassed that since selectionprocess and consequentappointments of the respondentswere marred by bungling, the learnedSingle Judge was not justified inallowing the writ petition on theground that no opportunity of hearingwas afforded to the petitioner-respondents in that, submitted thelearned standing counsel, in the factsituation of the case, no opportunityof hearing commended itself to begiven to the petitioner respondents.The submission made by the learnedstanding counsel is wide off the mark.The validity of an order adverselyaffecting a public servant may betested on the touchstone of Articles 14, 16, 21 and 311 of the Constitutionand statutory provisions, if there beany, regulating the service conditions.It is a settled proposition of law thataudi alteram partem rule of naturaljustice operates tn a field nototherwise covered by statutoryprovisions and is regarded as a facetof Article 14 of the Constitution. In Basudeo Tiwari a. Sido Kanhu University and others, JT 1998 SC 464, the Supreme Court was in seisin of the question regarding applicability of audi alteram partem rule in the context of the provisions contained in Section 35 (3) of the Bihar Universities Act, 1970, which enabled the Competent Authority to terminate sons notice any appointment or the promotions made contrary to the provisions of the Act. Statute, Rules and Regulations or made in irregular and unauthorised manner. The appointment of the appellant therein was terminated on the ground that on the relevant date, the Syndicate had no power to make appointment on the post of lecturer. No opportunity was afforded to the appellant therein before terminating his appointment. The writ petition challenging the order of termination met the fate of dismissal by the Patna High Court. Reliance was placed by the High Court on the provisions contained in Section 35 (3) of the Bihar Universities Act. 1970. The Supreme Court allowed the appeal and set aside the order passed by the Patna High Court as well as the impugned order terminating service of the appellant therein holding, inter alia, as under:
'(9) the law Is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of Slate action governed by Article 14. It has come to be established as a further corollary. that the audi alteram partem facet of natural justice is also a requirement of Article 14 for natural justice Is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee Is antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court inDelhi Transport Corporation v. D. T. C. Mazdoor Congress, JT 1990 (3) SC 725.
(10) In order to imposeprocedural safeguards this Courthas read the requirement ofnatural justice in situations whenthe statute is silent on this point.The approach of this Court in thisregard is that omission to imposethe hearing requirement in thestatute under which the impugnedaction is being taken does notexclude hearing--it may beimplied from the nature of thepower--particularly when theright of a party is affectedadversely. The justification forreading such a requirement isthat the Court merely suppliesomission of the Legislatures, VideMohiinder Singh Gill and another v.Chief Election Commissioner andothers. AIR 1978 SC 851 andexcept in case of direct legislativenegation or implied exclusion.Vide S. L. Kapoor v. Jagmohanand others, AIR 1981 SC 136.
* * * * * (12) The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, Statutes. Rules or Regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules. Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act. Statutes, Rules or Regulations etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such anenquiry the person whoseappointment is under enquiry will have to be issued (a noticed) to him. If notice is not given to him, then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such as proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair and reasonable as noticed by this Court in D.T.C. Mazdoor Sabha's case. In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, Statute, Rule or Regulations etc. and it is only on such a conclusion being drawn, the services of the person couid be terminated without further notice.....'
3. In a society governed by rule of law, every citizen including a public servant legitimately expects that on issues touching his life and liberty, the State and its instrumentalities shall deal him with in consonance with the principles of just, fair and reasonable governance of State affairs. In fact, reasonableness and fair-play in State action are regarded as a facet of right to equality before law and equal protection of law guaranteed by Article 14 and right to life and personal liberty guaranteed by Article 21 of the Constitution. Termination of services of a public servant in utter disregard of his legitimate expectations aforestated may, in appropriate cases, be taken to be denial of rights guaranteed by Articles 14, 16, 21 and 311 of the Constitution.
4. In Sanjeev Kumar and others v. State of U. P. and another, (1999) 1 UPLBEC 575, one of us (S. R. Singh, J.) reckoned with the question of applicability of the principle audi alteram partem in the context of a case where the services of the petitioners therein were terminated on the ground that appointments were made in flagrant violation of the relevant service rules and againstnon-existent vacancies. The Court delved into the applicability of natural Justice and doctrine of legitimate expectations and held as under:
'7. The next question of vital moment that calls for being determined pertains to applicability of the principles of natural justice and doctrine of legitimate expectation in service jurisprudence particularly in the fact situation of the case on hand. To begin with, it may be observed that right to livelihood is an indissoluble facet of right to life engrafted in Article 21 of the Constitution, wherein it is provided in no uncertain terms that no person shall be deprived of his life and personal liberty except according to the procedure established by law. The procedure prescribed by law has been judicially interpreted to signify a procedure which is just. fair, and reasonable. Reasonableness and fair-play in State action are regarded as a facet of fundamental right to life and liberty guaranteed by Article 21 and right to equality before law and equal protection of law guaranteed by Article 14 of the Constitution. A person inducted in Government Service in flagrant antagonism of rules and sans there being any post or vacancy, can have no legitimate expectation to be allowed to endure in service but if appointed in purported observance of the service rules ostensibly against a vacant post, then such appointee can legitimately expect that his services would not be terminated as no longer required except in due observance of a reasonable and fair procedure in accordance with the principles of transparent system of governance. Every public servant has a legitimate expectation of being dealt with by his master, throughout the entire field of his employment, in consonance with the rule of law and other fundamental principles of transparent system of governance envisaged by theConstitution. Termination in transgression of the limits of such legitimate expectation is an instance verging on violation of fundamental rights guaranteed by Articles 14 and 21 of the Constitution. The Government has a duly to act fairly and to adopt a nail studded procedure, which is fair play in action. 'Natural justice' and 'legitimate expectation' are thus regarded as a facet of fundamental rights guaranteed by Articles 14 and 21 of the Constitution in the sense explained above and therefore, breach of right to 'natural justice' and failure to consider and give due weight to 'legitimate expectations' of public servants/citizens may provide justification for invoking writ jurisdiction.'
5. In Shridhar v. Nagar Palika, Jaunpur, AIR 1990 SC 307, appointment by direct recruitment to the post of Tax Inspector was cancelled by the Prescribed Authority /Commissioner on the ground that the appointment ought to have been made by promotion. Writ petition challenging the order of Commissioner was dismissed. The Supreme Court held as under :
'(8) The High Court committed serious error in upholding the order of the Government dated 13,2.1980 in setting aside the appellant's appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's order had been passed without affording any opportunity of hearing to the appellant, therefore, the order was illegal and void. The High Court committed serious error in upholding the Commissioner'sorder setting aside the appellant's appointment. In this view, orders of the High Court and the Commissioner are not sustained in law.'
6. The respondents, in the fact-situation of the present case had a legitimate expectation of being heard before an adverse order was passed against him. The principle well settled is that 'when a statute confers power upon a Public Officer to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment'. See G. P. SINGH on PRINCIPLES OF STATUTORY INTERPRETATION VITH Edn. p. 276. In the instant case, nothing was brought to our notice on the basis of which it could legitimately be inferred that audi alteram partem rule was excluded by express words or necessary intendment. In Food Corporation of India v. M/s. Khamdhenu Cattle Food Industries, (1993) 1 SCC 71, the Supreme Court emphasised the need of fair-play in action in the following words :
'.....There is no unfettereddiscretion in public law : a public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure, which is 'fair play in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities with this element forming a necessary component of the decision making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting thebona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power; as it is unrealistic, but provides for control of his exercise by judicial review.'
'(8) The mere reasonable or legitimate expectation of a citizen in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in a larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.'
7. The case of Union. Territory of Chandigarh v. Dilbhag Singh, AIR 1993 SC 796, reliance on which was placed by the learned standing counsel has no application to the facts of the present case. In that case, it was held that a candidate who finds a place in the select-list as a candidate selected for appointment on a civil post, doesnot acquire an indefeasible right to be appointed in such post in absence of any specific rule entitling him for such appointment and he could be aggrieved by his non-appointment only when the administration does so either arbitrarily or for no bona fide reasons. It follows as a necessary concomitant that such candidate, even if has a legitimate expectation of being appointed in such posts due to his name finding a place in the select list of candidates, cannot claim to have a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily. In the present case, the selected candidates were given appointment and they were allowed to work for about 2-1/2 years when the orders impugned in the writ petition were passed. Further in the case of Dilbagh Singh (supra), the Chandigarh Administration on receipt of complaints about unfair and injudicious manner in which select list of candidates for appointment was prepared, found the complaints to be well founded on an enquiry conducted in that regard. The select list in that case was cancelled before it was acted upon. For these reasons, we are of the considered view that the decision in the case of Dilbagh Singh is not attracted for application to the facts of the present case.
8. In the conspectus of the decisions stated supra, we are of the considered view that the orders impugned in the writ petition have rightly been quashed by the learned single Judge having been passed in breach of principles of natural justice and in utter disregard of legitimate expectation of the respondents of being dealt with in just, fair and reasonable manner.
9. In the result, the appeal is bereft of merits and is accordingly dismissed. In the circumstances of the case, we make no orders as to the costs.