Chakradhar Chandrakar and ors. Vs. State of Chhattisgarh and ors. - Court Judgment

Excerpt:
service - appointment - petitioners appointed as health assistant in health centres on ad hoc basis - subsequently divisional joint director cancelled all appointments by order - petitioners challenged this order in high court - order stayed - on formation of madhya pradesh state administrative tribunal, matter was registered as transferred application, and ultimately dismissed - hence, present petition - held, there was no order or direction of government to concerned authority to make appointments of petitioners - no procedure was adopted by authority in appointments, by simply issuing appointment letters to various persons which cannot be sustained in eye of law - such method of authority render appointments null and void - in absence of any statutory provisions or direction to respondent no. 3, he was not competent authority to issue appointment orders - respondents were not entitled to hold the post - here, principles of natural justice were not required to be complied with - no merits - petition dismissed - sunil kumar sinha, j.1. the petitioners have challenged the validity of order dated 9-8-2002 passed by the madhya pradesh state administrative tribunal, jabalpur in t. a. no. 2678/88, whereby, their petition filed against the order of cancellation of their appointments was dismissed by the tribunal.2. the brief facts are that in all 25 persons, including 11 petitioners, were appointed on the posts of health assistant in different primary health centres in bastar division in between 21-1-1987 to 11-2-1987. according to their appointment orders, issued by the joint director health services bastar division (respondent no. 3), the said appointments were temporary appointments purely on ad hoc basis. copy of one of such appointment orders is reproduced as under:dk;kzy; lahkkxh; la;qdr lapkyd loklf; lsok,a clrj lahkkx&txnyiqjdzekad@lfkk-@87@ txnyiqj fnukadvkns'kfueufyf[kr o;fdr;ksa dks muds uke ds vkxs n'kkz;s x;s lfkku ij osrueku 515&800@& :- rfkk 'kklu }kjk lohd`r egaxkbz hkrrk ij rnfkz fu;qfdr muds uke ds vkxs n'kkz;s vuqlkj fueu 'krz ij fu;qfdr dh tkrh gs%&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&dz-; uke in inlfkkiuk&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&1- jh iks'k.kjke lkgw loklf; lgk;d izk-lok-ds- dks.mkxkao2- jh dy;k.k flag &&&^^&&& &&&^^&&&3- jh tqxyfd'kksj volfkh &&&^^&&& &&&^^&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&'krsz:1- ;g fu;qfdr furkar vlfkkbz gs a fcuk fdlh lwpuk ds ,d ekg dk uksfvl fn;k tkdj lsok,a i`fkd dh tk ldrh gs a2- bugs cgqmn~ns'kh; izf'k{k.k izkir djuk vfuok;z gksxk a 3- loklf; lacaf/kr fpfdrlk izek.k i= eq[; fpfdrlk ,oa loklf; vf/kdkjh }kjk izlrqr djuk gksxk a 4- 'kkldh; [ktkuk eq[; 'kh'kz 08 esa 3@& :- dks pkyku csad }kjk ,d izfr lsok iqflrdk es miyc/k djkuk gksxka la;qdr lapkydloklf; lsok,a clrj lahkkxtxnyiqjtxnyiqj fnukad 21&1&87 i`-dz-lfkk@87@izfrfyfi:1- ftyk ifjokj dy;k.k ,oa loklf; vf/kdkjh dkadsj vf/kdkjh dkadsj ftyk clrj dh vksj lwpukfkz a2- eq[; fpfdrlk vf/kdkjh izk-lok- dsunz dks.mkxkao dh vksj lwpukfkz a3- ---d`i;k lacaf/kr dks osru fjdr ---cgqmn~ns'kh; dk;zdrkz ls tk;s rfkk fjdr lsdvjks esa inlfk dj dk;z fy;k tkos a4- lacaf/kr dezpkjh;ksa dh vksj lwpukfkz ,oa ikyukfkz a5- vkns'k ulrh algh@&la;qdr lapkydloklf; lsok, clrj lahkkxtxnyiqj3. when the complaints were received that the appointments were irregular, and were made without following the procedure, the divisional joint director cancelled all the appointments by order dated 12-3-1987. after such cancellation, a writ petition was filed before the high court of madhya pradesh vide mp. no. 1309/87, in which an order of stay was granted on 8-6-87 and it was directed that the petitioners shall not be removed from their employment if they are actually holding the posts. later on, on account of formation of madhya pradesh state administrative tribunal (hereinafter referred to as 'the tribunal'), the said misc. petition was transferred to the tribunal and was registered as transferred application (t.a.) no. 2678/88 and ultimately, the same was dismissed vide order dated 9-8-2002. it is after this, the present writ petition has been filed before this court by the 11 petitioners out of 25, in which an interim order of stay was granted and the petitioners are still continuing in their services.4. the petitioners have mainly contended before the tribunal that their cancellation order was illegal andmalafide because they were not given any opportunity of hearing before passing the said order. the state contended before the tribunal that the concerned joint director, who issued the appointment orders, joined at bastar on 12-1-1987 and in between 12-1-1987 to 12-3-1987, he made 34 appointments without following the procedure as direct appointment orders were issued by him which were not in accordance with law.5. the tribunal recorded a finding that the petitioners did not claim that they applied for the jobs in response to any advertisement or their names were sponsored by the employment exchange and they have also not claimed that they were channeled through any selection process, therefore, their appointments were made de hors the rules. it further recorded that since the petitioners were appointed de hors the rules, in such situation, even if show-cause notice would have been issued to them, they could not have any satisfactory reply. therefore, the issuance of show-cause notice would have been merely empty formality. by taking assistance of judgments rendered by the apex court, including the judgment of m.c. metha v. union of india : [1999]3scr1173 , the tribunal held that on the facts of the case, the lack of show-cause notice has not caused any prejudice to the petitioners.6. in the writ petition before this court, the petitioners have taken almost similar grounds. however, they have added that by circular dated 19th january, 1987 issued by the erstwhile state of madhya pradesh, the appointments to class iii clerical and class iv posts were taken out of purview of junior service selection board, therefore, the concerned authority was competent to issue their appointment orders and the cancellation thereof was not in accordance with law on the grounds referred to above.7. the state has also filed its return and it has mainly contended that the appointments were made without inviting applications from the candidates or calling their names from the employment exchange. according to the state, direct orders of appointments were issued in favour of the petitioners and when the complaints were received by the commissioner bastar, jagdalpur, it was found that the appointments of the petitioners were illegal as no proper procedure was followed; no advertisement was issued; no names were called from employment exchange; no merit list was prepared; reservation rules were not followed and there were many other irregularities. it is very specifically contended vide para 13 (reply to para 5.6) of the return that though some posts were withdrawn from the purview of the junior service selection board on 19-1-1987 but the joint director was not authorized to fill the vacancies.8. a rejoinder to the return has also been filed by the petitioners, in which they have contended that since the concerned post was taken out of the purview of junior services selection board on 19th january, 1987 and there were no recruitment rules governing appointment of health assistant, the procedure adopted by the concerned authority could not be said to be illegal or arbitrary or violative of any statutory provisions regarding recruitment.9. shri manindra shrivastava, learned senior advocate appearing for the petitioners argued that since there were no statutory rules regarding appointments to the post of health assistant, therefore, the procedure adopted by the concerned authority cannot be said to be illegal. he secondly argued that there was express violation of principles of natural justice as the petitioners were not given any opportunity of hearing before passing the impugned order and the tribunal erred in law in dismissing their transferred application.10. on the other hand, learned counsel for the state opposed these arguments and supported the order passed by the tribunal.11. we have heard the learned counsel for the parties at length and have also perused the records of the writ petition.12. in the matter of secretary, state of karnataka and others v. umadevi : (2006)iillj722sc , the apex court held that the power of a state as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily. public employment in a sovereign socialist secular democratic republic has to be as set down by the constitution and the laws made thereunder. our constitutional scheme envisages employment by the government and its instrumentalities on the basis of a procedure established in that behalf. equality of opportunity is the hallmark, and the constitution has provided also for affirmative action to ensure that unequals are not treated as equals. thus, any public employment has to be in terms of the constitutional scheme. the apex court said that adherence to articles 14 and 16 of the constitution is a must in the process of public employment. adherence to the rule of equality in public employment is a basic feature of our constitution and since the rule of law is the core of our constitution, a court would certainly be disabled from passing an order upholding a violation of article 14 or in ordering the overlooking of the need to comply with the requirements of article 14 read with article 16 of the constitution. the apex court further held that in addition to the equality clause represented by article 14 of the constitution, article 16 has specifically provided for equality of opportunity in matters of public employment. article 309 buttresses these fundamental rights. article 309 contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. because of this, the entire process of recruitment for services is controlled by detailed procedures which specify the necessary qualifications, the mode of appointment, etc. if rules have been made under article 309 of the constitution, then the government can make appointments only in accordance with the rules. the apex court further held that employment exchanges (compulsory notification of vacancies) act, 1959 was enacted to ensure equal opportunity for employment seekers. it observed that though this act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure.13. further in the matter of state of manipur and ors. v. y. token singh and ors. 2007 air scw 1995, the apex court held that the state while offering appointments, having regard to the constitutional scheme adumbrated in articles 14 and 16 must comply with its constitutional duty, subject to just and proper exceptions, to give an opportunity of being considered for appointment to all persons eligible therefor. even assuming that the state has not framed any recruitment rules in terms of the proviso appended to article 309 but the same by itself would not confer power to make recruitments in violation of the provisions contained in articles 14 and 16. the apex court said that in the petition challenging cancellation of appointment it is for the petitioner to establish existence of a legal right in his favour and a corresponding legal duty to continue to be employed. the apex court also said that with a view to establish his legal rights to enable the high court to issue a writ of mandamus, the petitioner is obligated to establish that the appointment has been made upon following the constitutional mandate adumbrated in articles 14 and 16. the apex court further held that where the appointments had been made by a competent authority or atleast some steps have been taken in that behalf, the principles of natural justice are required to be complied with. there is however no arbitrariness on the part of the state in its action directing cancellation of appointments where the offers of appointment were cancelled not on the ground that some irregularities had been committed in the process of recruitment but on the ground that they had been non-est in the eye of law. the apex court said that any action, which had not been taken by an authority competent therefor and in complete violation of the constitutional and legal frame work, would not be binding on the state.14. if we examine the case on hand, it would appear that admittedly, there was no order or direction of the government to the concerned authority to make appointments of the petitioners on the post of health assistant. neither the petitioners nor the state could show that any such authority or power was given to respondent no. 3. on the contrary, the government has mentioned in its return, vide para 13, that though the posts were taken out of the purview of junior service selection board by the government on 19-1-1987 but the joint director was not authorized to fill up the vacancies. moreover, the petitioners have also not established that before issuance of the appointment orders, either some advertisement was published or the applications were invited or the names of the petitioners were sponsored through the employment exchange. it has also not been established that before issuance of the appointment letters, some procedure was adopted by the state and after completion of such procedure of the recruitment process, the appointment letters were issued. rather it is writ large in the pleadings of the parties that the concerned person, in the capacity of respondent no. 3, just after his joining as the joint director at bastar on 12-1-1987 issued as many as 34 appointment orders in between 12-1-1987 to 12-3-1987. the act of respondent no. 3 appears to be a direct action of issuance of appointment orders without following any procedure for the same. assuming that there was no prevailing rule for appointment to the post of health assistant, as contended by learned senior counsel for the petitioners, but that by itself would not confer any power or authority to respondent no. 3 to make recruitment in violation of the provisions of constitution contained in articles 14 and 16. as stated in the matter of y. token singh v. slate of manipur and ors. 2007 air scw 1995, if the petitioners are challenging the cancellation of the appointments, it is for them to establish that in such situation their appointments have been made upon following the constitutional mandate of articles 14 and 16.15. in view of the above, the first argument advanced by learned counsel for the petitioners, cannot be accepted. in fact, no procedure at all was adopted by the concerned authority to make the appointments and direct appointments were made by simply issuing the appointment letters to various persons which cannot be sustained in the eye of law. such method adopted by the concerned authority was de hors the scheme and frame work of constitution rendering the appointments to be a nullity.16. so far as the second argument regarding violation of principles of natural justice is concerned, admittedly respondent no. 3 was not given any authority to make such appointments. as contended by the petitioners, though the posts were taken out of the purview of junior service selection board, but in absence of any statutory provisions in this regard and further in absence of any power or direction to the respondent no. 3 in that behalf, it cannot be said that respondent no. 3 was competent authority to issue the appointment orders and in this manner also the appointment orders issued in favour of the petitioners were nullity, therefore, in our opinion, the respondents were not entitled to hold the post. the apex court said in the matter of y. token singh (supra), vide para 22 that where the facts are admitted, the principles of natural justice were not required to be complied with, particularly when the same would result in futility. it is on this ground the tribunal has held that there was no necessity of issuance of show-cause notice to the petitioners before passing the orders of cancellation of their appointments and we do not find any infirmity in such finding recorded by the tribunal. in our considered opinion, when the appointments were in complete violation of provisions of articles 14 and 16 of the constitution and they were nullity on this account and also on account of authority of respondent no. 3, there was no requirement of observance of fundamental principles of natural justice and we hold it accordingly.17. for the foregoing reasons, we do not find any merit in the writ petition filed by the petitioners. the petition deserves to be and is accordingly dismissed. consequently, the interim order granted by this court stands vacated. there shall be no order as to the costs.