ORDER
Arun Mishra, J.
1. In these writ petitions common order passed by the Collector is challenged. Petitioners assail the orders of their removal; they were appointed as contract teachers category IInd and IIIrd. Petitioners submit that M.P. Panchayat Sanvida Shala Shikshak (Appointment and Condition of Service) Rules, 2001 provides for method of appointment of contract teachers. An advertisement was issued for appointments of contract teachers in category IInd and IIIrd. There are 32 posts of Category IInd and 40 posts of Category IIIrd. Petitioners applied for appointment in their respective categories IInd/IIIrd; they were declared selected; Janpad Panchayat issued orders of appointment in different schools; petitioners joined the services and they were working to the satisfaction. All of a sudden on 3-11-2001 an order dated 23-10-2001 issued by the Chief Executive Officer was served intimating them that their appointment orders were cancelled in view of the letter of the Collector dated 8-10-2001. Order issued by the Chief Executive Officer in W.P. No. 5936/2001 is Annexure P-5. Petitioners in W.P. No. 5936/2001 submit that petitioner No. 1 belongs to Scheduled Tribe and stood in merit in first 25 of the selection list. Petitioner No. 2 belongs to OBC category and petitioner No. 3 is a general category candidate; they were removed without opportunity of hearing; without requiring to explain. Once they had joined the service, their removal could not be ordered without issuance of show-cause notice and the order of their removal is in violation of the principles of natural justice.
2. In W.P. No. 5769/2001 petitioner Sanjiv Kumar Patel was appointed as Contract Teacher Class IInd; appointment order dated 4-9-2001 was issued petitioner was appointed for a period of three years; petitioner joined at Middle School, Sailwar; without opportunity of hearing he was removed; petitioner belongs to OBC; no opportunity of hearing; not notice or one month salary in lieu of notice as per Rule 10 (f) of M.P. Panchayat Sanvida Shala Shikshak (Appointment and Conditions of Services) Rules, 2001 (for short “the Rules of 2001”) was given. Thus, termination is violative of Rule 10 (f) of the Rules of 2001.
3. In W.P. No. 6015/91 (Basantlal and five others), petitioner Nos. 1 to 5 were appointed as Class III contract teachers and petitioner No. 6 as Class IInd. They were appointed on 4-9-2001; they joined and were removed on 3-11-2001 as per order dated 23-10-2001 issued by the Chief Executive Officer respectively Annexures P-9 and P-10 without affording opportunity of hearing pursuant to the directions issued by the Collector.
4. In W.P. No. 5941/2001, petitioner Gyan Prakash Chandel was a Scheduled Caste candidate; he was appointed as Contract Teacher Class III. His services were ordered to be terminated as per Order (P-12), dated 23-10-2001 without issuance of show-cause notice pursuant to the direction issued by the Collector. Petitioner submits that Collector has no role to play in the process of appointment as such the appointment could not be cancelled without opportunity of hearing. There were other candidates lower in merit than the petitioner; they have been retained in service as they are relatives of members of Janpad Panchayat. Thus, step-motherly treatment has been meted out to the petitioner.
5. Respondent Janpad Panchayat in the return contends that so far as opportunity of hearing is concerned, petitioners are not entitled for the same because the appointments were found to be irregular in violation of the rules and were back door entries. Petitioner Sanjiv Kumar Patel in W.P. No. 5769/2001 was appointed against reserved post of Ex-serviceman; the post of Ex-Serviceman could not be filled due to want of application of that category. Thus, post could not be filled up; complaint was received against the irregularity; Collector directed enquiry and constituted District Level Enquiry Committee which submitted the report on 7-10-2001 which found that 25 persons were recommended by the selection committee for appointment, but a list of 26 persons was published; the name of petitioner was illegally added in the list against the post which was reserved for Ex-Serviceman. Collector issued direction dated 8-10-2001 to remove the petitioners which order was followed by issuing the order on 23-10-2001. Collector had issued a common letter on 8-10-2001 with respect to all the petitioners; action is being taken against the erring officials. Enquiry report is filed as Annexure R-l/3. It appears from the enquiry report that it was an administrative enquiry; it was found that certificates of experience were not got verified and certificates of Surendra Singh, Niranjan Singh, Narendra Singh and Ku. Shyama Bai were found to be forged. Thus, their selection was held to be improper as their names were not mentioned in the list furnished by the Block Development Resource Organiser. It was also found that marks obtained by Jageshwar and Kapoor who had passed engineering degree, their whole marks were counted which they obtained in the degree; the certificate of Ravindra Kumar patel should be got verified. There were certain other irregularities mentioned in the enquiry conducted. The Collector issued a common order dated 8-10-2001 (Annexure R-1/4). The names of petitioners are mentioned in Annexure R-1/4; removal of Gyan Prakash was ordered on the ground that only two posts were advertised of Scheduled Caste whereas three persons were selected. Laxmidevi, Vimlabai, Mangal Singh, Surendra Singh, Niranjan Singh, narendra Singh and Ku. Shyam Bai were ordered to be removed on the ground that their certificates of teaching experience were found to be forged. Basant was also removed on this ground and Sanjeev, Ravindra, Narendra and Ku. Deepmala’s removal was ordered on the ground that they were appointed as against the post reserved for ex-militaryman.
6. Pursuant to the direction of the Collector, the order dated 23-10-2001 was issued in all the writ petitions.
7. Learned Counsel for petitioners submits that order is violative of principles of natural justice; no show-cause notice was given; Collector is appellate authority; Collector did not register any appeal; only administrative enquiry was got conducted; that too behind the back of petitioners; once they were appointed had joined and were rendering the service, they ought to have been heard or at least some of them in representative capacity should have been heard by the Collector, and Collector has not passed any order but has directed removal by writing a letter. The Collector could have passed only an order on appellate side; that too after hearing the petitioners consistently in accordance with the principles of natural justice. They could have satisfied that vacancies were existing for several years and could no more be carried forward and the documents filed by the petitioners were condemned as forged without conducting any proper enquiry; without hearing them; petitioners were not given any opportunity to substantiate their documents and they have been condemned behind their back; the action is violative of Rule 10 (f) of the Rules of 2001 which reads as under :–
“10 (f). The services under these Rules before the expiry of the term, may be terminated by either side by giving one month notice or in lieu thereof by paying one month contract amount.”
The services under the above rule before the expiry of the term, may be terminated by either side by giving one month notice or in lieu thereof by paying one month contract amount. No such notice of one month or salary in lieu thereof was given; thus, the impugned orders are illegal and bad in law.
8. Learned Counsel for respondents submits that action taken by the Collector on the basis of administrative enquiry is proper and Collector was having the competence being the appellate authority to look into and direct the removal which he did by issuance of letter dated 8-10-2001 which was based on an enquiry got conducted by him and the petitioners’ removal is, thus, justified, principles of natural justice are not applicable in such circumstances.
9. Learned Counsel for respondents rely on decisions of Supreme Court in Aligarh Muslim University and Ors. v. Mansoor Ali Khan, AIR 2000 SC 2783, and S.L. Kapoor v. Jagmohan and Ors., (1980) 4 SCC 379, to submit that when facts are undisputed, they are speaking for themselves; as such the Court may not issue its writ to compel the observance of principles of natural justice, not because it approves the non-observance of natural justice but because Courts do not issue futile writs. But, it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary. Reliance is also placed on a Single Bench decision of this Court in Gajendra Singh Arya and Ors. v. State of M.P. and Ors., 2000 (2) MPLJ 51.
10. After hearing learned Counsel for the parties, I am of the opinion that writ petitions deserve to be allowed. The “Act” in Rule 2 (a) means M.P. Panchayat Raj Avam Gram Swarja Adhiniyam, 1993. Rule 9 provides for an appeal; as per Rule 9 an appeal shall lie in accordance with the provision of the Act against the orders passed under these Rules. It is not disputed that against the order passed by the Janpad Panchayat, Collector is the appellate authority under M.P. Panchayat Raj (Appeal & Revision) Rules, 1995. The main provision of appeal is in Section 91 of M.P. Panchayat Raj Adhiniyam, 1993. As a matter of fact, in the instant case, there was no appeal before the Collector; the Collector never registered any appeal nor passed any order adjudicating the question of appointment; the Collector got the administrative enquiry conducted unilaterally to which the petitioners were not the party and issued direction on administrative side to cancel the order of appointment of the petitioners. Collector could have passed such a direction under the rules in appeal; that too after hearing the petitioners. Petitioners were not noticed or heard at any stage, either by the Collector or by the enquiry committee or by the Chief Executive Officer of Janpad Panchayat who carried out the direction of the Collector. The petitioners were appointed; they had joined and were rendering the duties in different schools. Thus, a right accrued in their favour to be treated in accordance with the rules. Collector could have interfered only in appeal and not on administrative side into the affairs of the Janpad Panchayat as done in the instant cases. Whatever that may be in case the petitioners were to be removed, they were required to be heard; to defend themselves and to place their point of view. It is not a case which falls within the ambit of undisputable facts. Large number of petitioners’ certificates were found to be forged behind their back; they were not given any opportunity to substantiate their documents; they were stigmatized and petitioners submit that other incumbents similarly situated are continuing and they have been picked out for adverse action. Pick and choose was done. Relatives of the members of Janpad Panchayat are continuing in service though they were lower in merit than some of the petitioners. All these questions could be gone into properly after affording an opportunity of hearing to the petitioners.
11. Also the question that vacancies were continuing for last several years and could no more be carried forward as per rules was also the point which was to be taken into consideration while passing the order only after hearing the petitioners.
12. In W.P. No. 40/98 (Zakir Zafri v. State of M.P. and Ors.), I came to consider the question of principles of natural justice. Various decision rendered by the Supreme Court were considered and it was held that:–
7. After hearing learned Counsel for parties, I am of the opinion that once the petitioner was regularized and appointed on regular basis and Government had accorded approval to his appointment, his services could not have been dispensed with without following the principles of natural justice. In Ku. Neelima Misra v. Dr. Harinder Kaur Paintal and Ors. (AIR 1990 SC 1402), the Supreme Court held that the order having civil consequences should have passed consistently with the observance of principles of natural justice. They are inhered in every administrative civil action carrying civil consequences. The Supreme Court held as under :–
“We find it difficult to accept the reasoning underlying the aforesaid view. Before we consider the correctness of the proposition laid down by the High Court we must, at the expense of some space, analyse the distinctions between quasi- judicial and administrative functions. An administrative function is called quasi-judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice. Where there is no such obligation the decision is called “purely administrative” and there is no third category. This is what was meant by Lord Reid in Ridge v. Baldwin, (1963) 2 All ER 66, 75-76:
“In cases of the kind with which I have been dealing the Board of Works…….was dealing with a single isolated case. It was not deciding like a Judge in a law suit, what were the rights of the persons before it. But it was deciding how he should be treated – something analogous to a Judge’s duty in imposing a penalty…. So it was easy to say that such a body is performing a quasi-judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character the principles of natural justice. Sometimes the functions of a minister of department may also be of that character and then the rules of natural justice can apply in much the same way……”
“An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken.”
“The shift now is to a broader notion of “fairness” or “fair procedure” in the administrative action. The administrative officers are concerned, the duty is not so much to act judicially as to act fairly. For this concept of fairness, adjudicative setting are not necessary, nor it is necessary to have lites inter parties. There need not be any struggle between two opposing parties giving rise to a “lis”. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. But when even such an administrative decision unless it affects one’s personal rights or one’s property rights, or the loss of or prejudicially affects something which would juridically be called at least a privilege does not involve the duty to act fairly consistent with the rules of natural justice. We cannot discover any principle contrary to this concept”.”
8. In Shridhar son of Ram Dular v. Nagar Palika, Jaunpur and Ors. (AIR 1990 SC 307), the Supreme Court has held as under:–
“The High Court committed serious error in upholding the order of the Government dated 13-2-80 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’s Order setting aside the appellant’s appointment. In this view, Orders of the High Court and the Commissioner are not sustainable in law.”
9. In case of appointments which were made invalidly in Shrawan Kumar Jha and Ors. v. State of Bihar and Ors. (AIR 1991 SC 309), the Supreme Court held that it is necessary to give hearing to the employees so appointed and thereafter the services should have been dispensed with. Supreme Court held as under:–
“By an order dated November 2, 1988 the Deputy Development Commissioner cancelled the appointments of the appellants. Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents has contended that the appointments have been cancelled because the District Superintendent of Education had no authority to make the appointments, it was a device of bypassing the reservations and that the conditions which are part of the appointment order were not complied with. Mr. U.R. Lalit and Mr. A.K. Ganguli, learned Sr. Advocates appearing for the appellants have controverted these allegations and have dated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. 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 rule of natural justice.”
13. In Union of India and Ors. v. Jaykumar Parida, (1996) 1 SCC 441, the Supreme Court held that when an incumbent had rendered three years service, there was allegation of having secured appointment by producing false income certificate, it was held that prior opportunity of hearing is a must. In Director General of Police and Ors. v. Mrityunjoy Sarkar and Ors., AIR 1997 SC 249, the allegation was of securing the appointment on the basis of fake list of employment exchange. It was held that hearing opportunity should be provided before passing an adverse order; opportunity of representation should be afforded and thereafter speaking order should have been passed.
14. In Basudeo Tiwary v. Sido Kanhu University and Ors., AIR 1998 SC 3261, the Supreme Court held that if appointment is contrary to rules, it cannot be set aside without hearing even though rule provides that such an appointment can be terminated without notice.
15. In the instant case, principles of natural justice were not observed; no show-cause notice was issued; thus, the order issued by the Collector on administrative side is illegal and violative of principles of natural justice. When law provides a mode of doing a thing, that could only be done in that manner and other modes of doing it are excluded as held by Their Lordships in Dhanajaya Reddy v. State of Karnataka, (2001) 4 SCC 9. Their Lordships re-emphasized that when the law required a thing to be done in a certain manner, it has to be done in that manner or not at all. Rule 10 (f) of the Rules of 2001 provides for one month notice or salary in lieu thereof; appointment of the petitioners was for a period of three years as per rule, thus, they were entitled to be treated in accordance with the provision contained in Rule 10 (f). For this reason also, the order of removal is bad in law.
16. The respondents have relied on decision of Aligarh Muslim University (supra). Their Lordships emphasized the principles of S.L. Kapoor v. Jagmohan (supra). When there are admitted or undisputed facts, only one view is possible. In that event no prejudice can be said to have been caused to the delinquent though notice has not been issued. it is not the situation obtainable in the present cases. The facts are disputes and the removal has been ordered on the basis which required opportunity of hearing. True it is that when an appellate power is exercised and illegalities found are galore, opportunity of hearing to each and every individual is not necessary, but in the instant cases defects are not found in the procedure in general, but various petitioners were ordered to be removed for various reasons; fault has not been found in the selection procedure in its entirety. No appeal, as a matter of fact, was registered; decision was taken on administrative side which was prima facie impermissible. Even if such an enquiry can be conducted by the superior authority, but to annul the appointment, opportunity of hearing is required to be granted which was not done in the instant cases at any stage.
17. Resultantly, the direction issued by the Collector on 8-10-2001 and the consequent order of removal of petitioners issued on 23-10-2001 are quashed. Petitions are allowed. Petitioners are directed to be reinstated. However, the respondents are free to conduct enquiry in accordance with law after hearing the petitioners and to take action in accordance with law cost on parties.