S.D. Shah, J.
1. These petitions under Article 226 of the Constitution of India are filed by 36 persons who were serving as either Attendant or Dressers under District Development Officer, respondent No. 1 herein, and whose services were terminated vide orders dated 24th September, 1990 and 28th September, 1990. This enblock mass termination of Class IV employees has given rise to the present litigation.
2. It should be noted that most of the petitioners belong to either SC or ST. The petitioners prior to their termination as Dressers or Attendants were serving as daily wagers with the respondent since 1986-87 at veterinary hospitals or at various veterinary centres.
3. There were vacancies in the post of Dressers and Attendants under District Panchayat, Panchmahals. The said vacancies were ordinarily as per Government resolution dated 12th December, 1988 required to be filled in from the candidates sponsored by the Employment Exchange, the District Social Welfare Officer and also by Director of Social Welfare, Gujarat State. In order to fill in the vacancies of Dressers and Attendants the respondent-Panchayat has called for the names of eligible candidates from the Office of Employment Exchange, District Social Welfare Officer, District Baxi Panch Officer and from the Office of the Director of Social Welfare, Gujarat State. There were 39 vacancies. 147 names were sent by District Social Welfare Office/District Baxi Panch Office. 320 names were sent by the Office of Employment Exchange. Thus for 39 vacancies in all 476 candidates were sponsored by the official agencies namely, the Office of Employment Exchange, District Social Welfare Officer/District Baxi Panch Officer and Director of Social Welfare, Gujarat State. It appears that over and above these 476 candidates who were sponsored by official agencies the selection committee has also invited the daily rated employees who were working either as Dressers or Attendants in various veterinary hospital and primary veterinary centres. Most of the petitioners belong to the class of daily wage employees who were already working since 1986-87 either as Dressers or Attendants at various veterinary hospital or primary veterinary centres under respondent District Panchayat. A few of the petitioners were also sponsored by Employment Exchange. The petitioners received letter of interview dated 26-3-1990 informing each petitioner individually that he was called for interview by District Panchayat Selection Committee on 6-4-1990 along with all documents about his educational qualifications, experience and documents certifying his caste. It appears that pursuant to the interview letters received by the petitioners, they all appeared before the District Panchayat Selection Committee between 6-4-1990 to 10-4-1990 and they along with a large number of other candidates were interviewed by the District Panchayat Selection Committee.
3A. The State of Gujarat has in exercise of the powers conferred upon it by Section 323 read with Sub-section (1) of Section 102 of Gujarat Panchayat Act (hereinafter referred to as 'the said Act') enacted Rules which are known as the Gujarat State Service (Appointing Authority) Rules, 1967. Rule 2 of the said Rules specify in column 1 of the table the authority who shall be 'Appointing authority' for the categories of posts which are specified in column 2 of the table. Originally, prior to the amendment for the post of Dressers and Peons, which is equivalent to the post of Attendant, the appointing authority specified under the said Rules was District Animal Husbandary Officer. It may be noted that the said Rules came to be subsequently amended in the year 1986 and the post of Peon (Attendant) came to be deleted and for the post of Dressers the appointing authority continued to be District Animal Husbandary Officer. With respect to Peons (Attendants) the appointing authority is Dy. District Development Officer (Revenue) and this factual position is not disputed. It should be mentioned that the post of District Animal Husbandary Officer is now redesignated as Dy. Director, Veterinary.
4. The selection committee for the purpose of holding interview of the aforesaid candidates was constituted and it consisted of (i) Dy. Director, Veterinary, (ii) Dy. Development Officer (Revenue), (iii) Social Welfare Officer.
5. Pursuant to the interview held by the aforesaid selection committee the persons who were selected in interview were informed vide letter dated 12-4-1990 that they were selected and were included in the select list and were also informed about their placement in the select list. Thereafter by order dated 16-4-1990 the petitioners were appointed temporarily as Dresser/Attendant on permanent vacancies by Dy. Director, Veterinary.
6. All petitioners accordingly resumed their duties at the respective place of their posting and started discharging their duties either as Attendant or Dresser.
7. By order dated 24th September, 1990, and 28th September, 1990 the services of all persons who were selected and appointed pursuant to the aforesaid process of selection were terminated. These orders of termination of services of the petitioners are under challenge in these petitions.
8. Mr. M.R. Shah, learned Counsel appearirg for the petitioners has challenged the orders of termination by submitting that the petitioners having been selected pursuant to the process of selection by the Selection Committee and having been appointed on the respective post of Dressers/ Attendants should not have been terminated without prior notice especially when the petitioners belong to either SC or ST or Other Backward Class and were working with the respondent-Panchayat as daily wagers since 1986-87. He has submitted that termination of employment of the petitioner without following the due procedure of law and without afording them an opportunity of being heard is arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution of India. He has further submitted that in view of the interim order passed by the learned single Judge of this Court while admitting the petition the petitioners are already taken back in service as Attendant/ Dresser and they are discharging their duties as such and therefore the respondent-Panchayat should not be permitted to terminate the services of the petitioners.
9. The respondent-Panchayat has filed the affidavit-in-reply of in-charge Dy. District Development Officer (Revenue) and from the said affidavit-in-reply the main reasons which have weighed with the respondent -Panchayat in terminating the petitioners can be deduced as under:
10. There were 39 vacancies in the cadres of Dressers and Attendants in the Office of respondent-Panchayat. For this 39 vacancies in all 156 candidates were required to be called for interview. However, more than 476 candidates were available from amongst the candidates sponsored by the Employment Exchange, District Social Welfare Officer/Baxi Panch Officer over and above 81 direct applicants, who were called for interview. As per the Government resolution dated 12th December, 1988 issued by Panchayat and Rural Housing Department, the District Panchayat was required to consider the cases of candidates sponsored by the Employment Exchange and District Social Welfare Officer. For Class III posts names were required to be called from the Office of the Director of Social Welfare, Gujarat State. It is further provided in the said Government resolution that post of Dressers and Attendants being Class IV posts were required to be filled in from amongst the candidates sponsored by the aforesaid Government agencies and in case such candidates were not available, direct applicants were to be considered. When the candidates from Government agencies were available, direct candidates were not to be considered. In this case as against 39 vacancies more than 476 candidates were sponsored by the Office of Employment Exchange as well as by Office of District Social Welfare Officer/District Baxi Panch Officer. Therefore it was not permissible for the authorities to entertain and receive the applications for direct recruitment from the daily wagers who were working of different offices of the Panchayat. The posts of Dressers/Attendants were separate posts carrying different pay scales and different duties. The authority competent to appoint Attendant was different from the authority competent to appoint Dressers. The recruitment rules in the said two posts were also different. The procedure for selection for recruitment to the said two posts was also different. For the post of Attendants the appointing authority was Dy. Development Officer (Revenue) while the order of appointment was actually issued by Dy. Director of Animal Husbandary who has no authority to appoint and therefore petitioners who were appointed as Attendants were appointed by a person who has no authority to appoint and therefore the appointments were vitiated and were null and void.
11. The very fact that out of 39 candidates who were appointed pursuant to the process of selection as many as 26 persons were not sponsored through official agencies and they belonged to the class of daily wagers would clearly show that the Selection Committee did not ascertain the suitability bona fide and in fair manner and has tried to favour the daily wagers by selecting them. The process of selection was therefore vitiated.
12. The selection committee did not obtain the approval of District Development Officer nor did it consult the District Development Officer after making selection of the candidates and before making appointment of candidates to the respective posts. The petitioners of Special Civil Applications Nos. 8235, 8236 and 8237 have approached the Civil Service Tribunal against their termination and their applications were rejected by Gujarat Civil Services Tribunal by judgment and order dated 3rd October, 1991 and therefore this Court should not interfere with the said decision of the Tribunal.
13. The main reason for terminating the services of the petitioners as stated by the respondent-Panchayat is that the petitioners were not eligible to be considered for the post of Attendants/Dressers because their names were not sponsored by official agencies. It is admitted position that petitioners were the daily wage employees working with the respondent-Panchayat and they also applied directly for being considered for the posts of Attendants/Dressers. As per the Government resolution dated 12-12-1988 the names of the candidates were to be sponsored by the Office of Employment Exchange and Office of the District Social Welfare Officer/Office of District Baxi Panch Officer. Since much reliance is placed on the said circular of Government dated 12-12-1988 it will be beneficial to refer to para 29 of the said circular which prescribes Government agencies from whom the names of the candidates were to be called for.
14. Para 29.1 of the said circular provides that when vacancies in Class III & IV posts are to be filed in from persons belonging to backward classes, the names of candidates of Scheduled Castes and Scheduled Tribes and Other Backward Classes should be called for from:
(1) for post of Class III from the Office or Director, Social Welfare Gujarat State, Gandhinagar
(2) from Office of Social Welfare Officers of each District
(3) from Office of Employment Exchange
(4) Direct applicants Para 29.2 of the circular prescribes that if other things are equal the appointing authority should give preference to calling for the names from Item Nos. 1 to 3 stated hereinabove and only when candidates are not available from the aforesaid agencies at item Nos. 1 to 3, the appointing authority should resort to giving appointment by considering direct applicants.
15. From the aforesaid paras 29.1 and 29.2 of the Government Circular, the respondents contended that in view of specific instructions issued by the Government the appointments were to be made from out of the candidates who were sponsored by official agencies and appointing authority was not justified in calling for interviews the direct applicants and in considering such applicants who were not sponsored by Government agencies. In my opinion the aforesaid circular of the Government dated 12-12-1988 and more particularly the stipulations made in paras 29.1 and 29.2 do not impose an absolute prohibition against consideration of the direct applicants. The object of the aforesaid two paragraphs of the circular is to see that when Class III and IV posted are to be filled in from amongst candidates belonging to backward classes, the sources from which the candidates should be called for are those provided in the circular. One of the sources is the 'Direct applicants'. Ordinarily when the candidates are available from three Government agencies there is no need of referring to the fourth source, i.e., the source of 'Direct applicants'. However when the direct applicants were also the persons belonging to Scheduled Caste or Scheduled Tribs and when they were serving as daily wagers with the respondent-Panchayat since last 3 to 4 years, they could not have been excluded from consideration inasmuch as they being persons belonging to SC and ST were similarly situated to the persons who were sponsored by the Government agencies. All persons belonging to SC and ST, if otherwise eligible were entitled to be considered for appointment to the posts of Attendant/Dresser. It was more so when persons like the petitioners who were already serving either as Artendants or Dressers with respondent since last 3 to 4 years could not have been legitimately excludded from consideration along with other candidates sponsored by the Government agencies when the primary object of the Circular is to see that for Class III and IV posts parsons belonging to SC, ST and Backward Classes are considered. The Circular cannot be read so as to prescribe an absolute prohibition prohibiting the recruiting authority from considering the direct applicants belonging to SC, ST and other Backward Classes for such posts. It is more so when the persons, applied as direct applicants were already working with the recruiting authority. To interpret the aforesaid paras 29.1 and 29.2 of the Government Circular as prescribing a total prohibition against consideration of persons belonging to SC and ST for the posts on the ground that they were the direct applicants, would in my opinion be hit by Articles 14 and 16 of the Constitution of India inasmuch as equality of opportunity in the matter of employment will be denied to such persons belonging to SC and ST only on the ground that their names were not sponsored by the Government agencies. This further micro classification of persons belonging to Scheduled Caste, Scheduled Tribe and Other Backward Classes was not called for and was not consistent with the underlying principle of equality of opportunity in the matter of employment guaranteed by Article 16 of the Constitution of India. In my opinion if direct applicants also belonged to SC, ST or Socially and Educationally Backward Classes their names were required to be considered and they were required to be permitted to compete along with other candidates. While prescribing the sources from which the names are to be called for by the recruiting authority, what was intended was to see that sufficient candidates belonging to SC, ST and Other Socially and Educationally Backward Classes are available. If over and above the Government agencies candidates of SC and ST and Socially and Educationally Backward Classes are considered by the recruiting authority along with the candidates sponsored by the Government agencies, the recruiting authority cannot be said to have travelled beyond the provisions of the circular. The spirit of the circular is to see that for Class III and IV posts the persons belonging to SC, ST and Backward Classes are considered and if found eligible are appointed. To confine the process of selection only to the candidate sponsored by Government agencies and to totally exclude from consideration the candidates who applied directly, more particularly when they were employed with the employer as daily wagers, would amount to denying the equality of opportunity of employment to such persons.
I am fully fortified in my view by recent judgment and ultimate directions issued by the Supreme Court of India in the case of Sandeep Kumar v. State of Uttar Pradesh, reported in 1992 LIC 395. The petitioner before the Supreme Court were employed on daily-rate basis in a public sector undertaking. The vacancies which occurred were sought to be filled up by receiving employees from regular establishment of State Government on deputation without considering the claim of employees working as daily rated employees. In a petition under Article 32 of the Constitution of India the Supreme Court observed as under:
So far as regularisation is concerned it is the stand of the petitioners that even when vacancies occur, those are being filled up by receiving employees from the regular establishments of the State of Uttar Pradesh on deputation thereby overlooking the claims of employees under the Corporation. Counsel for the Corporation has agreed and we must accept the position that his agreement is justified, that all such vacancies which would occur henceforth shall ordinarily be filled up by regularising the employees like the petitioners who are directly employed by the Corporation and as and when that is not possible for some reason, no temporary basis deputationists may be accepted so as to ensure that no deputationist functions more than six months... As and when the Corporation suggests to Government for filling up of the vacancies, we suggest that Government may consider the request favourably and with a sense of immediacy.
Though based on agreement or concession made by the Counsel of U. P. Government, to which Court has accorded its approval, the aforesaid observations and directions make it abundantly clear that ordinarily claim of daily waged employees for regularisation is not to be overlooked as and when vacancies occur. Consistent with such principle if the selection committee has considered the claims of daily rated employees, it cannot be said that entire process of selection is vitiated.
The recruting authority in fact acted justly and fairly by providing an opportunity to such daily wagers to compete with the candidates who were sponsored by the Government agencies. It shall have to be noted that such candidates belonged to the permissible source from where the candidates can be considered. They belonged to the fourth source namely 'Direct applicants'. In other respects they were equal to the candidates sponsored by the Government agencies inasmuch as they were also persons belonging to SC, ST and OBCs. Such candidates cannot be excluded as a class by themselves from consideration. In fact the object of the circular was to provide opportunity to persons belonging to SC, ST and Other Backward Classes, to get employment of Class III and IV post. It was not only consistent with the object but also consistent with the underlying principle of Article 16 of the Constitution to call for and consider the candidates who were already working as daily wagers with the respondent authority and who also belonged to SC, ST and Other Backward Classes. Any other interpretation of the said circular would make the circular inconsistent with the principle of equality of opportunity in the matter of employment guaranteed by Article 16 of the Constitution of India by excluding from consideration persons belonging to SC, ST and Other Backward Classes only on the ground that they were not sponsored by Government agencies. Such candidates cannot be classified as a class by themselves so as not only to exclude them from consideration for the post of Dressers/Attendants but also to deprive them of their employment as daily wager inasmuch as the other persons belonging to SC, ST and Other Backward Classes, would be considered and if selected would be recruited while these persons shall be terminated. The recruiting authority has not directly appointed such persons but has called upon such persons to undergo the process of selection by presenting themselves before the selection committee. In substance such persons belonging to SC, ST and Other Backward Classes are provided an equal opportunity to compete with other persons belonging to the same class for recruitment to Class III and IV posts. Their appointment therefore, cannot be voided on the ground that they were not sponsored by the Government agencies and therefore they could not have been considered by the selection committee. In my opinion such an interpretation of the circular would render the circular null and void so as to deny the opportunity of at least being considered for appointment to persons belonging to SC, ST and Backward Classes, who were not sponsored by the Government agencies. A further classification in the class of SC, ST and Other Backward Classes cannot be the objective when constitutionally special protection is given to them and equality of opportunity is also guaranteed to them. The candidates sponsored by the official agencies and persons already serving as daily wagers in the office of the recruiting authority belonging to SC, ST and Other Backward Classes are all to be treated as one class since the objective is to see that Class III and IV post are filled in by persons belonging to SC, ST and Other Backward Classes. Exclusion of such daily wagers belonging to SC, ST and OBCs from consideration would have been otherwise violative of Articles 14 and 16 of the Constitution of India. In my opinion the recruiting authority was fully justified in considering such persons belonging to SC, ST and OBCs along with candidates sponsored by Government agencies. I therefore, do not find any substance in the first and main reason advanced by the respondent for terminating the services of the petitioners.
16. Mr. Mohit Shah, learned Advocate appearing for the respondents has invited my attention to the decision of the Supreme Court in the case of Union of India and Ors. v. N. Hargopal and Ors., reported in : (1987)ILLJ545SC . The question which came up for consideration before the Supreme Court was as to whether an establishment in the Public Sector as defined in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 may make appointments to post to which the Act applies, of persons not sponsored by the Employment Exchanges? A Division Bench of the High Court of Andhra Pradesh took the view that the said Act has no application to Government establishments and the said Act has not cast any obligation on the Public Sector establishments to make the appointments from amongst candidates sponsored by the Employment Exchanges only and that any insistance that candidates sponsored by the employment exchages alone should be appointed would be contrary to the right guaranteed by Articles 14 & 16 of the Constitution of India. While considering the correctness of the said proposition the High Court examined the provisions of the said Act and observed that it is the desire of Government of India that all Government departments. Government organizations and statutory bodies should adhear to the rule that not merely vacancies should be notified to the employment exchanges, but the vacancies should also be filled by candidate sponsored by the employment exchanges. It was only when no suitable candidates were available, then other sources of recruitment were to be considered. The Couit has observed that while the Government is at perfect liberty to issue instructions to its own departments and organisations provided the instructions do not contravene any constitutional provision or any statute, such instruction cannot bind other bodies which are created by statute and which function under the authority of statute. The argument that when Parliament had not gone into the question and decided that there should be no compulsion in the matter of appointment by way of restriction of the field of choice, to those sponsored by the employment exchanges was noticed by the Court but was rejected by observing as under:
The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job. In the case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public emploper chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes a grave element of arbitrariness is certainly introduced. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning. We, therefore consider that insistance of recruitment through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution.
The aforesaid observations are to be read in the context of challenge to the provisions of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, as well as to the Government instructions issued for time to time. In the absence of a better method of recruitment it was held that any restriction that employment in Government Department through the employment exchanges does not offend Articles 14 & 16 of the Constitution. However, when the instructions issued by the Government also provided 'Direct applicants' as a permissible source of recruitment and when the paramount object is to give appointments to Class III and IV posts to persons belonging to SC, ST and OBCs, persons already working as daily wagers since last more than 3 to 4 years cannot be excluded from consideration inasmuch as they are not in any way differentially situated from other candidates belonging to SC & ST and who are sponsored by Government agencies. In my opinion, the Supreme Court has by the aforesaid observations not contemplated that when similarly situated candidates or better situated candidates belonging to SC & STs are available for consideration and who also answer the demands of the requirements of the job, they should not be considered or even denied the right of being considered only because they were not sponsored by Government agencies. It is more so when such persons were already selected and appointed pursuant to the process of selection. Such persons cannot be denied their right to job on the ground that they were not entitled to be considered. The aforesaid observation of the Supreme Court do not lay down any such principle and in my opinion do not support the case of the respondent.
17. The second objection of the respondent is that posts of Dressers and Attendants were posts of separate caders and were in every way distinct posts. Firstly it is submitted that pay scale of Attendant is Rs. 750-940/ -while that of the Dressers is Rs. 800-1150/-. Secondly it is submitted that recruitment rules for recruitment of Attendant are different and distinct from recruitment rules of Dressers. The third submission is that the appointing authority for Dresser is Dy. Director of Animal Husbandary while recruitment authority for Attendants is Dy. District Development Officer. Forthly it is submitted that qualifications and criteria of eligibility prescribed by the recruitment rules for recruitment of Dressers are different and distinct from the qualifications and criteria of eligibility prescribed for the post of Attendant. It is therefore submitted that no common select list could have been prepared by selection committee since the two cadres were different in every respect. Incidentally the third ground of challenge which is connected with the second ground is that even orders of appointment of Attendants were issued by the authority which has no power to appoint Attendants and therefore those appointments were illegal and were required to be cancelled. It is undoubtedly true that cadre of Attendants and Dressers are distinct cadres. However, it appears that the selection committee has kept present to its mind the qualifications and criteria of eligibility prescribed both for the post of Dressers and for the post of Attendants. Those who were qualified and eligible for being recruited to the post of Dressers were so appointed and those who were qualified and eligible for being appointed to the post of Attendants were also selected and appointed on the post Attendants. It is not the case of the respondent that persons who were not qualified or otherwise ineligible for any of the two posts were appointed. Therefore I do not see any sustainable objection which would vitiate the process of selection simply because common selection committee conducted the interviews and prepared the select list.
18. Mr. Mohit Shah, learned Advocate for the respondents has further submitted that the orders of appointment of Dressers issued by Dy. Director of Animal Husbandary were null and void and did not confer any rights on the appointees and, therefore, appointment of Attendants were even otherwise required to be terminated. It shall have to be noticed that the post of District Animal Husbandary Officer is equivalent to the post of Dy. Director Veterinary. Prior to the amendment of the Rules power to appoint a person on the post of Dresser as well as on the post of Attendant was with District Animal Husbandary Officer. The power to appoint Dresser continued with Dy. Director of Animal Husbandary. However, by amendment of the Rules in 1986 the power to appoint attendants is given to Dy. District Development Officer. It should be noted that the selection committee which interviewed the candidates consisted of three persons namely Dy. Director Veterinary, Dy. District Development Officer (Revenue) and Social Welfare Officer. Thus, the Dy. District Development Officer was member of the selection committee which selected the candidates for the post of Attendants. However, the amendment in the Rule made in the year 1986 was not noticed at the time of issuing orders of appointment and all orders of appointment in favour of Dresser as well as Attendants were issued by one and the same authority namely Dy. Director of Animal Husbandary. The question is whether such appointments would be null and void so as to deny the appointees the right of being appointed or so as to render such appointments illegal. In my opinion the appointing authority was a party to the selection committee. The appointing authority namely Dy. District Development Officer is a Class-1 Officer. The person who has actually issued the appointment order, i.e., Dy. Director of Animal Husbandary is also a Class-1 Officer. Therefore, the appointment of some of the petitioners to the posts of Attendants would not be vitiated simply because of the fact that the Officer who has issued the order of appointment was not authorised to appoint Attendants. This infirmity has crept in because of the fact that prior to the amendment of the Rules in 1986. Dy. Director of Animal Husbandary was authorised to make appointment both for the post of Attendants as well as Dressers.
19. The aforesaid contention can be examined from a different point of view viz., that of non-compliance with rudimentary principle of natural justice before terminating the services of those petitioners who were appointed as Attendants. It is an admitted position that pursuant to the order of appointment issued in favour of some of the petitioners they resumed their duty as Attendants. They in fact worked as Attendants and on the date when they received the order of termination they were working as Attendants. It is also an admitted position that the authority which has power to appoint the Attendants under the amended Rule, viz; Dy. District Development Officer was the member of the selection committee and in the process of selection the appointing authority was the party. The selection of such persons as Attendants could not therefore be said to be vitiated. However, unaware of the amended Rules the orders were issued by another Class-1 Officer, viz., Dy Director of Animal Husbandary who was appointing authority for Dressers. Therefore it was a case of bona fide error on the part of the recruiting authority. If and when such error is noticed, some of the petitioners were already appointed as Attendants and they started working as Attendants. Therefore, if their services were to be terminated on the ground that the person who issued the order of appointment had no authority to appoint, rules of natural justice ought to have been followed so as to issue notice to show cause to the persons who were appointed as Attendants calling upon them to show cause against cancellation of their appointments. Admittedly, the respondents did not issue any notice and directly issued the order of termination of some of petitioners. The orders were, therefore, in total disregard of elementary rule of natural justice. In a recent decision in the case of Shrawan Kumar Jha v. State of Bihar, reported in 0065/1991 : AIR1991SC309 , the Supreme Court was called upon to decide identical question when appointments of 175 Assistant Teachers were sought to be cancelled on the ground that the person who had issued the appointment orders had no authority to make appointment. In the said context, the Supreme Court observed as under:
In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice.
In view of the aforesaid observation it becomes clear that those petitioners who were appointed as Attendants could not have been terminated without complying with the rules of natural justice. In the facts of this case, I am of the opinion that since Dy. District Development Officer (Revenue) who is the appointing authority for the post of Attendants was a party in the selection committee and since he has selected petitioners as eligible persons for the post of Attendants, the appointment of (he petitioner cannot be voided solely on that ground. The interest of justice would be met in the facts and circumstances of this case by directing the Dy. District Development Officer (Revenue) to issue fresh orders of appointment in favour of those petitioners who were selected by him for the post of Attendant so as to regularise their appointments. The irregularity in the appointment of such petitioners is one which can be cured in view of the fact that the appointing authority was party to the process of selection and in view of the further fact that both the Dy. District Development Officer (Revenue) is a Class-1 Officer and the person who has actually issued the order of appointment namely Dy. Director Animal Husbandary is also a Class-1 Officer and, therefore, simply because error is committed because of omission to notice the subsequent amendment of the Rules, the petitioners who were appointed as Attendants cannot be terminated. For no fault of such petitioners and for obvious mistake committed because of omission in noticing the subsequent amendment in the Rules the respondents cannot be permitted to terminate the services of the petitioner especially when the entire procedure of selection is followed and when petitioners having been successful in such process were already appointed and the right to job which was conferred upon them by their appointment is now sought to be denied. I therefore do not accept this ground also.
20. The learned Counsel appearing for the respondent has further submitted that the selection committee did not act properly or bona fide inasmuch as it selected 26 persons who were not sponsored through official agencies. He further submitted that out of 39 posts as many as 26 persons were appointed from amongst the candidates who were not sponsored through official agencies and, therefore, the entire process of selection was vitiated. It must be mentioned that the selection committee consisted of all Class-1 Officers. The selection committee has interviewed in all 476 candidates including the persons who were working as daily wagers and who had applied for the post of Dressers or Attendants. Simply because large number of persons serving as daily wager were selected, the process of selection cannot be said to be mala fide or lacking in good faith. It shall have to be noted that the posts were to be filled in by candidates belonging to Scheduled Castes and Scheduled Tribes or other Economically and Socially Backward Class candidates. The persons selected by the selection committee belonged to the category of Scheduled Castes, Schedule Tribes and/or Socially and Educationally Backward Classes. If such persons are selected by the selection committee I do not see any reason to regard such selection as mala fide selection. It is also pressed into service by the learned Counsel Mr. Mohit Shah that in fact show cause notices were issued to the then Dy. District Development Officer (Revenue) and the then Dy. Director Veterinary and the then District Social Welfare Officer for the irregularities committed in the selection and consequent appointments. In my opinion, if committee was validly constituted and if any of those officers is not shown to have been actuated by any other consideration to select the petitioner, the appointments of the petitioners were not liable to be terminated on the ground that committee did not act fairly or justly. None of the rejected candidates have made the grievance. No one has come forward to this Court or to the respondent authorities making grievances of the fact that the selection committee did not act impartially, fairly or justly. In absence of any challenge on this ground coming from any independent person, the respondent authority cannot be permitted to challenge the final selection made by the selection committee. I, therefore, do not see any substance in this ground advanced by the respondents to justify their action of terminating the services of the petitioner.
21. Mr. Mohit Shah, learned Counsel appearing for the respondent has further submitted that petitioners of Special Civil Applications No. 8235, 8236 and 8237 of 1991 have resorted to the remedy of preferring appeal before Gujarat Civil Services Tribunal and their appeals were dismissed by the Civil Tribunal mainly on the ground that one of the appeals preferred by one employee B.J. Jaiswal was already dismissed by the Tribunal and since Jaiswal has not carried the matter further the order of the Tribunal has become final and therefore the other appeals preferred by the petitioners were liable to be dismissed. The learned Counsel for the respondent, therefore, submits that the order passed by the Tribunal are not shown to be in any way without jurisdiction nor is any error apparent on the face of the record shown in the said judgment which would justify interference of this Hon'ble Court under Article 227 of the Constitution of India. He therefore submits that this Court should not interfere in case of those petitioners in the aforesaid three petitions who have resorted to remedy of appeal by preferring appeal to Gujarat Civil Services Tribunal and whose appeals are dismissed. In my opinion, the submission is required to be stated for being rejected only. Firstly, the Tribunal has not independently considered the challenge of the petitioners of the said three petitions to the orders of their termination. Since in the case of one of such employee the Tribunal has dismissed appeal, it has dismissed appeal of the aforesaid petitioners. Secondly the Tribunal has also not considered as to whether persons who are already appointed can be straightway terminated without complying with the rules of natural justice as observed by the Supreme Court in the case of Shrawan Kumar Jha v. State of Bihar, reported in 0065/1991 : AIR1991SC309 (supra). Thirdly, for the reasons already given hereinabove the appointment of the petitioners cannot be said to be ex facie without jurisdiction and/or authority nor can the process of selection be said to be null and void so as to confer no right on such persons of being appointed. For the reasons already given hereinabove, in my opinon, the selection was not null and void and was not vitiated so as to render the appointment of selectees to the posts as ab initio null and void. In fact appointments of all Dressers were by the persons competent to appoint and process of selection as per my earlier finding cannot be said to be vitiated. I am therefore of the opinion that in the aforesaid three petitions the judgment and order of Gujarat Civil Services Tribunal shall have to be quashed and set aside and petitioners shall have to be treated as continuous in service of the respondent.
22. Civil Revision Application No. 720 of 1991 is filed by one Haji Pasha Charan who was sponsored by Employment Exchangs and who was selected and appointed as Attendant. Since his service was terminated he instituted Regular Civil Suit No. 510 of 1990 in the Court of Civil Judge (S.D.), Godhra, and obtained ex parte injunction against termination of his service. Ex. 5 application was thereafter heard and by judgment and order dated 26th June, 1991 the trial Court dismissed the application for injunction on the ground that the petitioner has alternative remedy to prefer Appeal to the Gujarat Civil Services Tribunal. Being aggrieved by the said judgment and order the petitioner preferred Misc. Appeal No. 91 of 1991 before Extra Assistant Judge, Panchmahals, Godhra who dismissed the appeal vide his judgment and order, dated 9th July, 1991. Being aggrieved by the said order the petitioner has preferred this Civil Revision Application and under the order passed by this Court the petitioner has continued in service. For the reasons which are stated in this judgment and order passed by the lower Court as confirmed in appeal by the Extra Assistant Judge are raquired to be quashed and set aside and it shall have to be declared that the petitioner of this petition shall continue on the post of Attendant and that termination of his service was null and void.
23. In the result, Spl. C.A. Nos. 3558, 3758, 3799, 7077, 7080, 7398 and 8457 all of 1991 are hereby allowed and the impugned orders of termination of services, dated 24th September, 1990 and 28th September, 1990 passed against the petitioners are hereby quashed and set aside and it is further declared that the petitioners of the said petitions are entitled to hold the post of Attendant/Dresser as per their orders of appointment and they are entitled to all benefits flowing from their continuous appointment. As regards their entitlement to backwages it is stated that pursuant to interim order passed by learned single Judge in May, 1991, they were permitcd to resume their duties and hence from the date of resumption of their duties they are paid their wages. For the period prior thereto since they have not worked and since they have approached this Court only in May, 1991 they shall not be paid any backwages on the principle of no work no wages. Rule is accordingly made absolute with no order as to costs.
24. As regards Spl. C.A. Nos. 8235, 8236 and 8237 all of 1991, the same are allowed and judgment and order of Gujarat Civil Services Tribunal in Appeal Nos. 468, 469 and 470 all of 1990 dated 3rd October, 1991 are hereby quashed and set aside and it is declared that the orders of termination of the petitioners are null and void and the petitioners are entitled to hold the post of Attendant/Dresser as per their orders of appointment and they are entitled to all benefits flowing from their continuous appointment. As regards their entitlement to backwages it is stated that pursuant to interim order passed by learned single Judge in May, 1991, they were permited to resume their duties and hence from the date of resumption of their duties they are paid their wages. For the period prior thereto since they have not worked and since they have approached this Court only in May, 1991 they shall not be paid any backwages on the principle of no work no wages. Rule is accordingly made absolute with no order as to costs.
25. C.R.A. No. 720 of 1991 is allowed and the judgment and order of trial Court as well as Extra Assistant Judge in Misc. Civil Appeal No. 91 of 1991 are quashed and set aside and it is declared that the order of termination of the petitioner is null and void and the petitioner is entitled to hold the post of Attendant/Dresser as per the order of appointment and he is also entitled to all benefits flowing from his continuous appointment. As regards his entitlement to backwages it is stated that pursuant to interim order passed by learned single Judge in May, 1991, he was permited to resume his duties and hence from the date of resumption of his duties he is paid his wages. For the period prior thereto since he has not worked and since he has approached this Court only in May, 1991 he shall not be paid any backwages on the principle of no work no wages. Rule is accordingly made absolute with no order as to costs.
26. Special Civil Application No. 143 of 1992 is filed only in the month of February, 1992 and it was admitted and ordered to be heard along with this group of petitions by R. A. Mehta, J. The petitioner of that petition hails from remote backward area and belongs to Scheduled Tribe. After undergoing the process of selection he was appointed as Attendant by order, dated 16-4-1990. His services came to be terminated by order, dated 21-9-1990 mainly on the ground that Deputy Director, Animal Husbandary was not competent to appoint Attendant and that the Dy. D.D.0. (Revenue) was the competent authority. For the reasons already stated hereinabove this order of termination also cannot be sustained and it shall have to be quashed and set aside and it is further declared that the petitioner is entitled to hold the post of attendant. The respondents are directed to reinstate the petitioner in service forthwith as this petitioner was not continued in service like other petitioners under interim order of this Court.
27. In view of the fact that this petitioner was not vigilant enough to approch this Court at the earliest opportunity and he has approached the Court only in the month of February, 1992, I do not give directions to pay him backwages but I direct the respondents to pay to him his salary and allowances regularly from 15th March, 1992 and to treat him as continuously in service without any break for all purposes. Rule is accordingly made absolute with no order as to costs.