M. Katju, J.
1. These 19 special appeals are being disposed of by this common Judgment.
2. Heard learned counsel for the parties.
3. These special appeals are directed against the Judgment of the learned single Judge dated 26.11.1998 by which the learned single Judge allowed the writ petitions and cancelled the termination orders of the petitioners and directed that they shall be treated in continuous service and shall get their salaries.
4. Out of these 19 special appeals, four of them relate to Azamgarh and the remaining 15 relate to Allahabad. Although the principle of law applicable to all these 19 cases are the same, there is one factual difference between the Azamgarh cases and the Allahabad cases. The four appeals relating to Azamgarh, i.e., Special Appeal Nos. 64, 65, 66 and 69 of 1999 relate to writ petitioners who were appointed and worked on temporary basis for a few days, (though as contended by the learned counsel for the U.P. Jal Nigam, it was against the clear direction of the Chief Engineer, Jal Nigam, who had directed that no appointment should be made till further orders). These four persons who were appointed on temporary basis at Azamgarh joined and worked for a few days but thereafter their appointments were cancelled.
5. As regards the 15 appeals which relate to Allahabad, the 15 writ petitioners never worked at all, and in fact the then Superintendent Engineer, U.P. Jal Nigam, Allahabad, had been divested of his authority to make appointments by the Chief Engineer, U.P. Jal Nigam a month before the appointment orders were made by him (in view of the serious complaints about the bungling, corruption and other irregularities regarding these appointments) and such appointments too were subsequently cancelled. Thus, while the 4 writ petitioners of Azamgarh had worked (though in a purely temporary capacity), for a few days, the 15 writ petitioners of Allahabad had not worked at all. However, in our opinion, this makes no deference.
6. We may first take the four cases relating to Azamgarh. It appears that vide letter dated 31.5.1997 (Annexure-1 to the stay application in the special appeal) a special recruitment drive was made to fill up the vacancies in class III and class IV employees, and the candidates already working in the U.P. Jal Nigam as work charge, muster roll and trainee apprentices were to be given priority in this recruitment. These vacancies were mentioned in the schedule annexed to the said letter. By the letter dated 7.6.1997. (Annexure-2 to the stay application in the special appeal) the Chief Engineer, U.P. Jal Nigam, directed that the formalities for making selection may be completed but the appointment shall only be made after re-allocation of the vacancies. In pursuance of the aforesaid order dated 31.5.1997, the head office of the U.P. Jal Nigam, Lucknow, published an advertisement in the Hindi newspaper 'Dainik Aaj' dated 21.6.1997, Inviting applications on different temporary posts in the office of the Superintending Engineer, Temporary Construction Circle, U.P. Jal Nigam, Azamgarh. It was mentioned in the advertisement that the employees working in the Jal Nigam shall be given priority. True copy of the publication dated 21.6.1997 is Annexure-3 to the stay application in the special appeal.
7. It appears that subsequently the Scheduled Caste and Scheduled Tribe Officers Employees Kalyan Parishad, U.P. Jal Nigam, made a complaint to the Chief Engineer, U.P. Jal Nigam, dated 14.7.1997, mentioning various irregularities and illegalities in appointments at the Azamgarh circle of the Jal Nigam. and requested that the appointing authority (the then Superintending Engineer, Sri Ram Prasad) be changed so that a fair selection may be held. True copy of the complaint is Annexure-11 to the stay application.
8. It appears that on 15.7.1997, the Chief Engineer, Electrical and Mechanical, U.P. Jal Nigam, Lucknow by order dated 15.7.1997, directed the then Superintending Engineer, U.P. Jal Nigam, Azamgarh, that the appointments on the sanctioned post should remain suspended till further orders. True copy of the said order is Annexure-5 to the stay application in the special appeal.
9. It appears that in pursuance of the earlier order dated 31.5.1997, issued by the Chief Engineer, the Superintending Engineer, U.P. Jal Nigam, Azamgarh constituted a selection committee by order dated 21.7.1997 vide Annexure-6 to the stay application in the special appeal,
10. Thereafter the Chief Engineer vide his letter dated 13.8.1997 asked the Superintending Engineer, Azamgarh circle to complete the formalities but not to make appointment till the allocation of the vacancies. True copy of this order is Annexure-7 to the stay application in the special appeal. In pursuance of the aforesaid letter dated 13.8.1997 the Superintending Engineer, U.P. Jal Nigam, Azamgarh, issued appointments by a common order dated 26.8.1997 on the post of draft-man, routine grade clerk, stenographers and peons. Copies of these appointment orders are Annexures-8, 9 and 10 to the stay application in the special appeal. A perusal of these appointment orders shows that the appointments are only on temporary basis and can be terminated at any time without notice.
11. In pursuance of the appointment order dated 26.8.1997, the writ petitioners in the 4 special appeals mentioned above were appointed at Azamgarh, but on the basis of the complaint made by the Kalyan Parishad (mentioned above) the appointments made by the Superintending Engineer were cancelled by the Chief Engineer by order dated 17.9.1997. Copy of the cancellation order is Annexure-12 to the stay application in the special appeal. In this cancellation order dated 17.9.1997 it is specifically mentioned that the persons appointed did not possess the requisite qualifications, and irregularities have been committed in making these appointments regarding which the Kalyan Parishad had made complaints. The appointments were made without getting approval for these appointments and in a secret manner by a common order dated 26.8.1997, which discloses the corruption and arbitrariness. Some persons appointed did not know typing but they were appointed as stenographers. The Chief Engineer sent a further letter dated 1.10.1997 to the Superintending Engineer, Azamgarh stating that the appointments have been cancelled as the procedure for the appointments have not been followed. True copy of the letter dated 1.10.1997 is Annexure-13 to the stay application in the special appeal. Accordingly the Superintending Engineer, Azamgarh, cancelled the appointment order dated 26.8.1997 by his order dated 7.10.1997 copy of which is Annexure-14 to the stay application in the special appeal. An F.I.R, was filed against the Superintending Engineer and one Stenographer under Section 409, I.P.C. copy of which is Annexure-15 to the stay application in the special appeal. It is alleged that the head office was conscious about the irregularities committed by the then Superintending Engineer, Temporary Construction Circle, U.P. Jal Nigam, Azamgarh, Sri Ram Prasad and Immediately transferred him from that post. The new Superintending Engineer Sri Munnar Ram who Joined in place of Sri Ram Prasad came to know on 26.11.1997 that the stenographer Sri Kanta Ram who was relieved on (sic).10.1997 from the office did not handover the documents regarding the appointments made in Azamgarh circle, and when Sri Kanta Ram, stenographer was asked about it he informed the Superintending Engineer Sri Munnar Ram that his predecessor Sri Ram Prasad had taken away the entire record when he was transferred to Allahabad and as such, no record was available. On the basis of this Information an F.I.R. was lodged.
12. It is alleged that gross irregularities were committed in making these appointments by the Superintending Engineer of the Jal Nigam in collusion with others. A departmental enquiry was Initiated against both Sri Ram Prasad, the then Superintending Engineer at Azamgarh, and Shri Munnar Ram, the then Superintending Engineer at Allahabad. Shrl Ram Prasad was found guilty in the enquiry and was subsequently dismissed from service. Sri Munnar Ram the Superintending Engineer at Allahabad (later transferred to Azamgarh) died of a heart attack during the departmental enquiry against him. Sri Munnar Ram, while posted as Superintending Engineer, Jal Nigam, Allahabad, had also committed grave irregularities in making appointments at Allahabad.
13. In the enquiry report against Sri Ram Prasad it was found that the departmental rules and procedure were not followed in making appointments.
14. It has been alleged by the appellants that it was mentioned in the advertisement that the daily wage work charge and muster roll employees already working in the department shall be given priority in appointments, but the appointing authority did not comply with this direction. 25 employees who were already working in the U.P. Jal Nigam as work charge/muster roll employees were sent to the office of the appointing authority (the Superintending Engineers, Ram Prasad and Munnar Ram) but the said authorities did not issue even a single call letter to any of these employees. For example, an application was made through proper channel by one Jiyalal, muster roll employee which was duly forwarded by the Executive Engineer III, Maintenance Division, U.P. Jal Nigam, Jaunpur, but neither any call letter was issued to him nor was he absorbed. Photocopy of the application of Jiyalal which was forwarded by the Executive Engineer on 28.7.1997 is Annexure-17 to the stay application. Similarly the names of the six persons were forwarded by the Executive Engineer, Construction Division, U.P. Jal Nigam, Ballia to the appointing authority/Superintending Engineer, Temporary Construction Circle, U.P. Jal Nigam, Azamgarh vide letter dated 13.6.1997, but none of these persons were given call letters or appointments. Copy of the letter dated 13.6.1997 along with the list of six employees is Annexure-18 to the stay application in the special appeal.
15. On the basis of the available records, a report was received by the Chief Engineer from the office of the Superintending Engineer, U.P. Jal Nigam, Azamgarh, a perusal of which disclosed several irregularities committed by the then Superintending Engineer Sri Ram Prasad. Some of these irregularities are as follows :
(1) 261 applications were received in the office of the appointing authority out of which 25 applications were received from the employees already working in work charge/muster roll but not a single call letter was issued to them.
(2) Out of 261 applications only 89 call letters were issued and surprisingly 12 candidates appeared in the examination.
(3) 53 applications were received from different Employment Exchange but only 37 call letters were issued and only 5 persons have been appointed on their respective post. A report clearly pointed out that no muster roll/work charge employee who were already working in the department had been given appointment though according to the various directions of the head office they were entitled to be considered on priority basis.
16. It is alleged by the appellant that some call letters were sent by the office of the then Superintending Engineer to the District Employment Office, Mau, which was received in his office on 25.6.1997 at 12.30 p.m. i.e., only two days before the interview. Hence, the District Employment Officer, Mau, expressed his inability to serve the call letters to the various candidates and the call letters were sent back to the office of the Superintending Engineer, Azamgarh vide Annexure-23 to the stay application in the special appeal. It is also alleged that the candidates who were to be appointed were already earmarked beforehand and no separate mark-sheet of the written examination and interview was prepared. Only one result sheet for the different posts was prepared and the candidates who were to be selected were given extraordinary favour in the interview. True copy of the result sheet of different posts is Annexure-24 to the stay application. Various other Irregularities have also been pointed out during the course of the departmental enquiry by the enquiry officer, e.g., that the question paper and answer sheets do not bear the seal and signature of any official of the department/selection committee, the examiner did not endorse his signature and designation, the answer sheets were changed after the examination, etc. The enquiry officer has also pointed out that the persons appointed on different posts were closely related with the then appointing authority Sri Ram Prasad and the then Stenographer Sri Kanta Prasad and other officials of the U.P. Jal Nigam.
17. In the impugned judgment the learned single Judge has allowed the writ petitions solely on the ground that the selected employees were entitled to opportunity of hearing before the cancellation of their appointment but no such opportunity of hearing was given.
18. In our opinion the judgment of the learned single Judge is erroneous in law and liable to be set aside. It is well-settled that rules of natural justice are not a straightjacket formula vide Anil Kumar Srivastava v. Chairman, L.I.C., 2003 (2) AWC 1113 (vide para 8) and Maharashtra State Financial Corporation v. Suvarna Board Mills, JT 1994 (5) SC 280, Some times the rules of natural justice can be modified or excluded altogether vide Biswa Ranjan Sahoo v. Sushanta Kumar Dinda and Ors., JT 1996 (6) SC 515 ; Union of India v. Tulsi Ram, AIR 1985 SC 1416 (vide para 101). In Union of India v. O. Chakradhar, 2002 (2) AWC 1264 (SC) : 2002 (3) SCC 146, the Supreme Court held that where the mischief in conducting the selection was so widespread and all pervasive affecting the result the whole selection should be cancelled without issuing individual show cause notices to the persons selected.
19. In this case, it is evident that there was deliberate bungling and irregularities committed by the then Superintending Engineers, Sri Ram Prasad and Sri Munnar Ram in making appointments at Azamgarh and Allahabad. In the letter dated 7.6.1997, the Chief Engineer has specifically mentioned that the Superintending Engineer should make appointment only after the reallocation of the seats. By letter dated 19.6.1997 the Superintending Engineer was asked why he included the names of such applicants who applied directly. It may be mentioned that the Superintending Engineer had specifically been directed to give preference to those already working as work charge; employees/daily wager/ trained apprentice in the 12 districts, but this direction was totally Ignored. Moreover, in the letter dated 2.7.1997 (Annexure-4 to the stay application in the special appeal), it was specifically mentioned that the employees and apprentices already working in U.P. Jal Nigam shall be given relaxation in age and preference in appointments. However, this direction was totally Ignored by the then Superintending Engineers Sri Ram Prasad and Munnar Ram who appear to have been bent upon making appointments of the persons of their choice in a predetermined manner for extraneous reasons.
20. It may further be pointed out that in the appointments at Allahabad it has been mentioned in the letter of the Chief Engineer to the Superintending Engineer dated 9.7.1997 (copy of which is Annexure-7 to the stay application in Special Appeal No. 6 of 1999) that till further orders no appointment should be made on the posts in question. Despite this clear-cut direction it appears that a publication was issued by the Superintending Engineer, Jal Nigam, Allahabad in the Hindi daily 'Dalnik Jagaran' dated 28.7.1997 (vide Annexure-5 to the stay application in Special Appeal No. 6 of 1999) requiring the applicants to appear in the examination at 10 a.m. on the dates already fixed earlier. It is thus evident that this was gross violation by the Superintending Engineer of the specific direction of his superior, that is, the Chief Engineer, U.P. Jal Nlgam, Lucknow. The Superintending Engineer was immediately questioned as to why written examination and interview was conducted in the face of the specific and clear-cut restraint order dated 9.7.1997, Imposed by the Chief Engineer at the head office at Lucknow vide Annexure-9 to the stay application in Special Appeal No. 6 of 1999. It appears that the Superintending Engineer turned a deaf-ear to the above and instead issued a letter to the Executive Engineer, Construction Division, U.P. Jal Nigam, Allahabad, dated 29.7.1997 at 9 p.m. to conduct the examination in order to avoid any unpleasant incident.
21. Since the head office (Office of the Chief Engineer, U.P. Jal Nigam, Lucknow) found that its order was being disobeyed it Issued a letter dated 26.7-1997 vide Annexure-11 to the stay application in Special Appeal No. 6 of 1999 directing that the results of the examination should be kept in a sealed envelope and the appointments should not be made till further orders. Ultimately all these Illegal appointments were cancelled and by the order dated 13.8.1997 the appointing authority was changed and instead the General Manager, Ganga Pollution, U.P. Jal Nigam, Allahabad, was made the appointing authority. However, inspite of this change in the appointing authority appointment letters were issued by Sri Munnar Ram, Superintending Engineer, U.P. Jal Nigam, Allahabad, on 11.9.1997, that is one month after the appointing authority had been changed and hence Sri Munnar Ram had no power or authority to issue such appointments.
22. In our opinion the learned single Judge has erred in law in holding that in such circumstances an opportunity of hearing should have been given. In our opinion no right had been created in favour of the writ petitioners in all these 19 cases, and hence there was no need to give opportunity to hearing. The appointments were totally irregular, fraudulent and Illegal and hence no opportunity had to be given for cancelling the same. In our opinion, where an appointment is made in a totally irregular, fraudulent and illegal manner, no opportunity of hearing need be given before cancelling such appointment. In the present case, we are of the clear opinion that the appointments of the writ petitioners were irregular, fraudulent and illegal and issued for extraneous reasons. In fact the two Superintending Engineers who issued these appointments were charge-sheeted and departmental proceedings initiated against them for these irregularities. Sri Ram Prasad was found guilty in the enquiry and was dismissed but Munnar Ram dted due to heart attack during the enquiry.
23. The learned single Judge has observed that the selected candidates were not only appointed but they Joined their duties. This observation does not seem to be entirely correct. The appointees of the Allahabad circle never Joined for a single day. The appointees of Azamgarh Joined for a few days but their appointment orders were later cancelled. Also in the appointment orders of Azamgarh circle it was clearly mentioned that the appointments are on a purely temporary basis. It is well-settled that a temporary employee has no right to the post, vide State of U.P. v. Kaushal Kishore, 1991 (1) AWC 651 (SC) : (1991) 1 SCC 91 ; Union of India v. A. P. Bajpai, AIR 2003 SC 923, etc.
24. In Union Territory of Chandigarh v. Dilbagh Singh, AIR 1993 SC 796, it was held by the Supreme Court that where the select list is prepared in an unfair and injudicious manner it is not necessary to give opportunity of hearing before cancelling the list.
25. In Union of India v. Akchhay Kumar Singh, 1999 (4) AWC 3564, a Division Bench of this Court held that where there are complaints of malpractices in the recruitment process it is not necessary to give opportunity of hearing to the selected candidates. All that is expected of the competent authority in such a situation is that it should act in good faith, and take a bona fide decision whether to scrap the recruitment or not.
26. In the present case, we have already held that there were grave irregularities in the selection and appointment of the writ petitioners, whose details have already been given above. In such a situation all that was required of the authority before cancelling the selection and appointment was that it should act in a fair and bona fide manner. That was done in this case. In our opinion it was not necessary in such circumstances to further insist that opportunity of hearing should also be given.
27. The concept of 'bad faith' has been explained in De Smith's Judicial Review of Administrative Actions, Fourth Edn. Pages 335-36 as under :
'The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository tends to achieve an object other than that for which he believes the power to have been conferred. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise.
A Court will, however, not in general entertain allegations of bad faith made against the repository of a power unless bad faith has been expressly pleaded and properly particularised.'
28. In a matter like the one on hand, the competent authority, in our opinion, did not decide a Ms between the complainant on the one hand and candidates seeking appointment on the other so as to be obliged to hold an enquiry in consonance with the rules of natural justice. Its decision is not to be judged from Judicial or even quasi-judicial standards and since exercise of power to scrap such recruitment is not regulated by objectively determinable factors, even 'reasonable belief as to the process of recruitment being vitiated by malpractices or corrupt means would suffice. The surrounding circumstances, e.g. the necessity to scrap the recruitment for preservation of public faith in the recruitment process will also do. The competent authority, in our opinion, is not required to hold a formal enquiry in accordance with the principles of natural Justice and ascertain the truth or otherwise of the complaints as to malpractice in the recruitment process as a condition precedent to cancelling the recruitment process. All that is expected of the competent authority in such a situation is that it would act in 'good faith' and take a bona fide decision whether to scrap or not scrap the recruitment. In our opinion the competent authority in the present case has acted bona fide.
29. In S.L. Kapoor v. Jagmohan and Ors., AIR 1981 SC 136, the Supreme Court took the view that failure to observe the principles of natural justice would not at all matter if the observance of natural Justice would have made no difference keeping in view the admitted facts speaking for themselves. The Court observed :
'............ where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non-observance of natural justice, but because Courts do not Issue futile writs.'
30. In Union of India v. Tulsiram Patel, AIR 1985 SC 1416 (vide para. 101) the Supreme Court held that rules of natural justice are flexible and can sometimes be excluded altogether as they are not a straight-jacket formula. This decision was followed by the Supreme Court in Union of India v. V.K. Jain, 2003 UPTC 536.
31. Learned counsels for the writ petitioners (respondents in these appeals) have relied on a Division Bench decision of this Court in C.M. Pandey v. State of U.P., 1999 (4) AWC 3415 ; 1999 (3) ESC 2193. That decision was based on totally different set of facts and hence is distinguishable. In the present case, the facts disclosed grave irregularities in making appointments and in fact two Superintending Engineers were charge-sheeted and in the enquiry one was dismissed after being found guilty, in the enquiry, while the other died during the enquiry. The appointments were made in a totally irregular and predetermined manner in the teeth of the directions of the higher authority and in violation of the procedure. Hence no benefit can be availed of by the writ petitioners from the decision of this Court in C.M. Pandey's case (supra).
32. Moreover, writ jurisdiction is discretionary Jurisdiction, and we are not inclined to exercise our discretion under Article 226 in favour of the writ petitioners in these cases in view of the facts mentioned above. In Dr. R.P. Singh v. Director of Higher Education. 2003 (52) ALR 185, a Division Bench of this Court has held that fraud and Justice never dwell together. The Division Bench has referred to the following observation of Lord Denning in Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341 :
'No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.' (followed in Pratap Singh v. State of Punjab, AIR 1964 SC 72 vide para 5).
33. For the reasons given above all these appeals are allowed. The impugned Judgment of the learned single Judge is quashed.