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Court No. 24
Writ Petition No. 6714 (SS) of 2007
Dinesh Kumar and others Vs State of U. P. and others
Connected with
Writ Petition No. 5192 (SS) of 2007
Ashok Kumar and others Vs State of U. P. and others
and
Writ Petition No. 4721 (SS) of 2007
Smt. Sunita Devi and others Vs State of U. P. and others
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Hon'ble Rajiv Sharma, J.
As the similar controversy is involved in all the above
mentioned writ petitions, same are being disposed of by the
common order.
Heard learned Counsel for the petitioners and learned
Standing Counsel.
By the impugned orders dated 29.1.2007, 17.7.2007,
20.7.2007 and 21.7.2007 selection on Class IV post in Animal
Husbandry Department was cancelled, which is under challenge in
all the writ petitions by which appointment and selection of
petitioners, who were selected and some of them were also
appointed as Class IV employees in Animal Husbandry
Department.
In nutshell, the case of the petitioners is that on 2.6.2005,
an advertisement was issued by the Deputy Director, Animal
Husbandry/opposite party No.3 for filling fifteen posts of Class IV
employees in Animal Husbandry Department in Lucknow Division,
Lucknow. Subsequently, a corrigendum of the aforesaid
advertisement was issued indicating the last date of submission of
application forms as 27.6.2005. Thereafter, on 17.9.2005, another
advertisement was issued by the respondent No.3 for filling fifteen
posts of Class IV employees in the said department. Petitioners
being qualified also applied against the said posts advertised in
the aforesaid two advertisements so their application forms were
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found in order and they were called for interview. As eighty one
vacancies were existing in the department, appointments were
made against all the existing vacancies. Thereafter, on 22nd/23rd
November, 2006, appointment letters were issued to the
petitioners. In pursuance of the appointment letters, the
petitioners joined on their respective posts. After joining on their
respective posts, the petitioners were performing their duties to
the utmost satisfaction of the higher authorities and there is no
compliant against them from any quarter. In the meantime, on a
complaint, an enquiry was made in the matter of appointment of
the petitioners and the Enquiry Officer submitted its report on
29.1.2007. Even though no fraud and misrepresentation was
found on the part of the petitioners in the said enquiry report, yet
the impugned order dated 7.6.2007 was passed by the State
Government directing the respondent No.2/Director, Animal
Husbandry to cancel all 81 appointments made on Class IV posts.
In pursuance of the order dated 7.6.2007, the impugned
cancellation orders dated 20.7.2007 and 21.7.2007 have been
passed.
Learned Counsel for the petitioners submits that the
impugned orders passed by the respondents cancelling the
selection/terminating the services of the petitioners are absolutely
illegal, arbitrary, unreasonable and the same cannot be allowed to
be sustained in the eyes of law. The appointments of the
petitioners have been made against the sanctioned vacancies and
there was a condition in the advertisements that number of
vacancies may increase or decrease as such by no stretch of
imagination can it be said that the appointments of the petitioners
have been made in excess of vacancies. The impugned orders
have been passed by the respondents without affording them an
opportunity of hearing, as such, the same are violative of
principles of natural justice. Even if assuming that the allegations
made by the Enquiry Officer in his report dated 29.1.2007 are
believed to be true, no allegation of any fraud or
misrepresentation against the petitioners has been alleged in the
said enquiry report or in the impugned order as before
cancellation of appointment/termination of services of the
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petitioners, principles of natural justice should have been adhered
to. The selection of the petitioners has been cancelled without
affording them any opportunity of hearing or to show cause in
gross violation of principles of natural justice as they have worked
continuously for almost seven months and have drawn their
salaries and as such, a substantive legal right has accrued in their
favour and the said right cannot be taken away without affording
them opportunity of hearing.
Rebutting the arguments of the learned Counsel for the
petitioners, learned Standing Counsel submits that the State
Government accorded permission and in pursuance of that, an
advertisement was issued on 13.6.2005 to fill-up 360 posts in
which 15 posts were allocated for Lucknow Division. After
completion of process of the interview, the Deputy Director issued
appointment letters to 81 candidates, whereas only 30 posts were
allocated to the Lucknow Division. Thereafter, one Ram Awadh
Yadav made a complaint regarding the aforesaid illegality. On the
basis of the complaint, the State Government directed the
Director to conduct an enquiry and submit report within ten days.
In pursuance of the directions issued by the State Government,
the Director started enquiry ascertaining the facts from the
Deputy Director, Animal Husbandry Division, Lucknow and
inspected the records of his office as well as examined the
members of selection committee and after completion of enquiry,
he submitted his enquiry report dated 29.1.2007 to the State
Government. From a perusal of the enquiry report, it reveals that
according to the permission granted by the State Government,
only 30 posts were allocated to the Lucknow Division, whereas the
Deputy Director had issued a merit list containing 61 selected
candidates. In addition to above, he issued a waiting list of 16
candidates, whereas according to Uttar Pradesh Pashu Palan
Vibhas Samoogh ‘Gha’ Seva Niyamawali, 1993, the provision of
making the waiting list in Group ‘D’ has been repealed, which was
issued by the Personnel Department of State Government. In the
said Rules, it has also been mentioned that if there is any
contradiction between the departmental Service Rules and the
Service Rules of the Karmic Department, then the Services Rules
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of the Karmic Department will prevail.
Refuting the submissions made by the learned Standing
Counsel, learned Counsel for the petitioners submits that as the
Enquiry Officer in its enquiry report made one of the allegations
that as per the service rules of the department maximum seven
persons could have been kept in waiting list, whereas 16 persons
have been kept in waiting list. The respondents have not produced
the rules issued by the Karmik Division of the State Government
by means of which, the provisions of making waiting list in Group
‘D’ have been repealed. Further, the impugned order cancelling
the selection/termination of the petitioners’ service has been
passed in an absolutely illegal, arbitrary and unreasonable manner
and in utter violation of principles of natural justice as no
opportunity of hearing was provided to the petitioners and the
petitioners after being appointed and worked for about seven
months and being paid salary of their respective posts,
substantive and legal right had accrued in their favour of being
heard prior to passing of the impugned order.
Petitioners’ counsel further contended that entire exercise
was initiated on the basis of some frivolous complaint made by
some persons who the petitioners believe to be a non-selectee
who have no sanctity or basis and on account of said frivolous
complaint, the petitioners have been made victim. In the
advertisement, specific clause was provided mentioning that
number of vacancies may increase or decrease, keeping in mind
that after the initiation of process of selection there can be
possibility of increasing or decreasing in the number of vacancies
which have been advertised.
I have carefully considered the arguments of learned
counsel for the petitioners and learned Standing Counsel and also
perused the materials on record. It transpire from the record that
the impugned orders were passed on the basis of the enquiry
report submitted to the State Government. Undisputedly, the
selection of the petitioners has been cancelled without affording
them any opportunity of hearing or to show cause which is in
gross violation of principles of natural justice as they have worked
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continuously for almost seven months and have drawn their
salaries and as such, a substantive legal right has accrued in their
favour and the said right cannot be taken away without affording
them opportunity of hearing.
The above view is supported by a decision of the Apex court
in Union of India and others Vs. Rajesh P. U.
Puthuvalnikathu and another reported in (2003) 7 SCC 285.
Relevant paragraphs read as under:
“In the light of the above and in the absence of
any specific or categorical finding supported by any
concrete and relevant material that widespread
infirmities of all pervasive nature, which could be
really said to have undermined the very process itself
in its entirety or as a whole and it was impossible to
weed out the beneficiaries of one or the other
irregularities or illegalities, if any, there was hardly
and justification in law to deny appointment to the
other selected candidate whose selections were not
found to be, in any manner, vitiated for any one or
other other reasons. Applying a unilaterally rigid and
arbitrary stand to cancel the entirety of the selections
despite the firm and positive information that except
31 of such selected candidates, no infirmity could be
found with reference to others, is nothing but total
disregard of relevancies giving a complete go-by to
contextual consideration throwing to the winds the
principle of proportionality in going farther than what
was strictly and reasonably to meet the situated. In
short the competent authority completely misdirected
itself in taking such an extreme and unreasonable
decision of cancelling the entire selection, wholly
unwarranted and unnecessary even on the factual
situation too, and totally in excess of the nature and
gravity of what was at stake, thereby virtually
rendering such Dikinson to be irrational.”
A number of persons have already been joined service in
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pursuance of the appointment letters issued to them. By the
impugned orders, their appointments were cancelled after joining
without opportunity of being heard and as such, the orders are
unsustainable in law also.
In this connection, it would be useful to refer the
observations of the Apex Court in Sridhar Vs. Nagar Palika,
Junpur reported in AIR 1990 SC 307. In this case, the Apex Court
held as under:-
“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.”
While terminating the services of an appointee who has
been selected in the selection process, the compliance with the
three principles as enumerated in Indrajeet Singh Kahlon
Versus State of Punjab [2005 (11) SCC 356] is imperative at
the hands of the state. These principles are (1) to establish
satisfaction in regard to the sufficiency of the materials collected
so as to enable the State to arrive at its satisfaction that the
selection process was tainted; (2) to determine the question that
the allegations committed go to the root of the matter which
vitiate the entire selection process. Such satisfaction as also the
sufficiency of materials were required to be gathered by reason of
a thorough investigation in a fair and transparent manner; (3)
whether the sufficient material present enabled the State go
arrive at a satisfaction that the officers in majority have been
found to be part of the fraudulent purpose or the system itself
was corrupt.
It is also relevant to mention that the Hon’ble Supreme
Court in the case of Union of India and others v. Rajesh P. U.
Puthuvalinkathu and another (supra), observed that where
from out of selectees, it was possible to read out the beneficiaries
of the irregularities or illegalities there was no justification in law
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to deny appointment to the selected candidates whose selection
was not found to be, in any manner, vitiated for anyone or other
reasons. The en bloc cancellation is not permissible.
In the case of Suvida Yadav and others Versus State of
Haryana and others [(2002) 10 SCC 269], the Apex Court
held that the recommendations of the names by Public Service
Commission pursuant to the requisition, in excess of the number
of posts advertised are valid and all the persons, so
recommended, are entitled to be appointed.
In the instant case, from the material on record, it is
abundantly clear that no such exercise was conducted by the
opposite parties and by a single pen of stroke, entire selection
process has been cancelled.
In view of the discussions made above, impugned orders in
all three writ petitions, are liable to be quashed.
Accordingly, all the three writ petitions succeed and are
allowed. The impugned orders dated 7.6.2007, 17.7.2007 and
20.7.2007 in Writ Petition No.4721 (SS) of 2007, 21.7.2007,
6.7.2007 and 29.6.2007 passed in Writ Petition No. 6714 (SS) of
2004 and 7.6.2007 and 20.7.2007 passed in Writ Petition No.
5192 (SS) of 2007 are hereby quashed.
Dt.1.2.2010
Lakshman/