Daya Ram vs State Of U.P. & Others on 4 January, 2010

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                                                          Court No. 24

                  Writ Petition No. 239 (SS) of 1991

Dayaram                                    ...     Petitioner

                               Versus

State of U.P. and others                   ...     Opposite parties

                              ----------

Hon'ble Rajiv Sharma, J.

Heard learned counsel for the parties.

In nutshell, the case of the petitioner is that by the order
dated 7.4.1990, the petitioner was appointed as Junior Clerk. The
petitioner submitted his joining report on 12.4.1990. Since then,
till passing of the impugned order, the petitioner has continuously
been working efficiently and diligently without giving any chance
of complaint to anybody. All of a sudden, the impugned order
dated 4.1.1991 has been passed cancelling the appointment of
the petitioner.

Learned Counsel for the petitioner submits that the order
cancelling the appointment of the petitioner, after such a long
time and without giving him an opportunity of hearing is legally
unsustainable. The petitioner has continuously worked for more
than 240 days and as such, the impugned order violates the
provisions of Industrial Disputes Act as the petitioner is workman
also.

Rebutting the arguments of the learned counsel for the
petitioner, learned Standing Counsel submits that the appointment
of the petitioner was an illegal appointment, as the committee,
which was constituted for selection was not properly constituted
and was not in accordance with the relevant Government Order.
Hence, the petitioner could not be treated as properly selected
candidate. No approval of the District Magistrate or nominate of
the District Magistrate was taken in the Selection Committee. In
this way, the whole process of selection and constitution of
selection committee was illegal, hence the order of appointment is
not tenable. As the appointment of the petitioner is not valid in
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the eyes of law, question does not arise for providing opportunity
or one month’s notice before relieving him from his work or
cancelling the illegal appointment. Since the U. P. Temporary
Employees Termination of Service Rules, 1975 were not applicable
in the case of the petitioner, as his services were not terminated,
but due to his illegal appointment his appointment was cancelled.
Therefore, he pleads for dismissal of the writ petition.

While entertaining the writ petition, this Court on 15.1.1991
stayed the operation and implementation of the impugned orders,
contained in Annexure Nos.4 and 5. Further, the opposite parties
were directed to allow the petitioner to continue in service and
pay salary accordingly.

Natural justice is the essence of fair adjudication, deeply
rooted in tradition and conscience to be ranked as fundamental.
The purpose of following the principles of natural justice is the
prevention of miscarriage of justice.

Besides, natural justice is an inseparable ingredient of
fairness and reasonableness. It is even said that the principles of
natural justice must be read into unoccupied interstices of the
statute, unless there is a clear mandate to the contrary.

The Hon’ble Supreme Court in iota of cases has reiterated
that a person who is put to any harm, he shall first be afforded
adequate opportunity of showing cause. In D.K. Yadav Vs.
J.M.A. Industries; (1993) 3 SCC 259 the Supreme Court while
laying emphasis on affording opportunity by the authority which
has the power to take punitive or damaging action held that
orders affecting the civil rights or resulting civil consequences
would have to answer the requirement of Article 14. The Hon’ble
Apex Court concluded as under:-

“The procedure prescribed for depriving a
person of livelihood would be liable to be tested on
the anvil of Article 14. The procedure prescribed by
a statute or statutory rule or rules or orders
affecting the civil rights or result in civil
consequences would have to answer the
requirement of Article 14. Article 14 has a
pervasive procedural potency and versatile quality,
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equalitarian in its soul and principles of natural
justice are part of Article 14 and the procedure
prescribed by law must be just, fair and
reasonable, and not arbitrary, fanciful or
oppressive.”

Keeping the above aspects of the matter in view, the writ
petition is allowed and the impugned orders dated 3.1.1991 and
4.1.1991 are hereby quashed. The opposite parties are directed to
re-consider the matter and pass appropriate orders, in accordance
with law.

Dt.4.1.2010
Lakshman/