HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S[CASE NUMBER]B[CASE NUMBER] Civil Writ Petition [CASE NUMBER][CASE NUMBER] 5177 / 2018 1[CASE NUMBER] [ENTITY] W/o Devendra Chaudhary, Aged About 36 Years, R/o Village Debari, District Udaipur[CASE NUMBER] 2[CASE NUMBER] [ENTITY] S/o Ramlal Lohar, Aged About 29 Years, R/o- Village- Debari, District Udaipur[CASE NUMBER] Petitioners Versus 1[CASE NUMBER] [ENTITY] Through Its Secretary, Department of Panchayati Raj and Rural Development, Secretariat, Government of Rajasthan, Jaipur[CASE NUMBER] 2[CASE NUMBER] The [ENTITY][CASE NUMBER] 3[CASE NUMBER] The [ENTITY][CASE NUMBER] 4[CASE NUMBER] The [ENTITY][CASE NUMBER] 5[CASE NUMBER] The [ENTITY][CASE NUMBER] Respondents For Petitioner(s) : Mr[CASE NUMBER] [ENTITY] with Mr[CASE NUMBER] [ENTITY] For Respondent(s) : Mr[CASE NUMBER] [ENTITY] for Mr[CASE NUMBER] [ENTITY], AAG HON'BLE DR[CASE NUMBER] JUSTICE PUSHPENDRA SINGH BHATI
Order 12/04/2018
1[CASE NUMBER] Learned counsel for the parties agree that the controversy is squarely covered by the judgment rendered by this Court in Subhash Chander Vs[CASE NUMBER] [ENTITY] & Ors[CASE NUMBER]
(S[CASE NUMBER]B[CASE NUMBER] Civil Writ Petition [CASE NUMBER][CASE NUMBER] 12299 / 2017) decided on 27[CASE NUMBER]11[CASE NUMBER]2017, which reads as under:-
1[CASE NUMBER] The petitioners have preferred these writ petitions, in sum and substance, with the following (2 of 22) [CASE NUMBER]] prayers and for the sake of convenience, the prayer clauses are being taken from the leading case being S[CASE NUMBER]B[CASE NUMBER]Civil Writ Petition [CASE NUMBER][CASE NUMBER]12299/2017:-
"(i) That the action of the respondents of recommendation to fresh selection for the post of Gram Panchayat Sahayak in pursuant to the order dated 27[CASE NUMBER]07[CASE NUMBER]2017 (Annexure-6) may be declared illegal qua the petitioner and the petitioner may be permitted continue on the post of Gram Panchayat Sahayak at Gram Panchayat Bhangarh, Panchayat Samiti, Bhadra, District Hanumangarh[CASE NUMBER]
(ii) That the respondents may be restrained not to issue new vacancy for the post of Gram Panchayat Sahayak for Gram Panchayat, Bhangarh[CASE NUMBER]
(iii) That during the pendency of the writ petition if the respondents issued any fresh cancellation or selection order, same may also be quashed and set aside[CASE NUMBER]
(iv) Any other appropriate relief which this Hon'ble Court deems just and proper in the facts and circumstances of the case, in favour of the petitioner, may kindly be granted to them[CASE NUMBER]"
2[CASE NUMBER] For the purpose of the present adjudication, the facts are being taken from the leading case being [CASE NUMBER][CASE NUMBER]
3[CASE NUMBER] The respondents amended the [ACT], while exercising the powers conferred by Section 102 of the [ACT][CASE NUMBER] The amended Rules were named as "The [ACT]"[CASE NUMBER] As per the amended Rules, the amendment of [SECTION] of the [ACT] was made, particularly after the existing [SECTION], new [SECTION] was added[CASE NUMBER] Thus, the post of Gram Panchayat Sahayak was created, on part time or on fixed honorarium or on contract basis, for Panchayat Office[CASE NUMBER]
4[CASE NUMBER] For the execution of [SECTION], the respondents came out with a circular dated 08[CASE NUMBER]11[CASE NUMBER]2016[CASE NUMBER] The said circular laid down the service conditions of the persons to be selected as Gram Panchayat Sahayak[CASE NUMBER] For the purpose of such selection, the eligibility criteria was as follows:-
"Xzkke iapk;r lgk;d gsrq vgZrk,sa 1- vkosnd jktLFkku ek/;fed f'k{kk cksMZ] vtesj ls lhfu;j lSds[CASE NUMBER]Mjh ;k blds led{k mRrh[CASE NUMBER]kZ gksuk vko';d gSA (3 of 22) [CASE NUMBER]] 2- vkosnd dh vk;q 18 ls 40 o"kZ dh gksuh pkfg,A 3- vkosnd dk ftl xzke iapk;r gsrq p;u fd;k tk jgk gS] ls lcaf/kr iapk;r lfefr dk LFkkuh; fuoklh gksuk vko';d gSA"
5[CASE NUMBER] Similarly for termination of any candidate, the following four conditions have been laid down in the said circular dated 08[CASE NUMBER]11[CASE NUMBER]2016:-
"xzke iapk;r lgk;d dk i`Fkddj[CASE NUMBER]k %&
(v) ;fn xzke iapk;r lgk;d nqjkpj[CASE NUMBER]k dk nks"kh ik;k tkrk gS vFkok U;k;ky; }kjk nks"kh ik;s tkus ij mls ekuns; ls i`Fkd fd;k tk ldsxkA
(c) xzke iapk;r lgk;d ds dk;Z esa ykijokgh] f'kfFkyrk vFkok fdlh Hkh izdkj dh vfu;ferrk djus dk nks"kh ik;s tkus ij lacf/kr xzke iapk;r }kjk mls gVk;k tk ldsxkA ,slk djus ls iwoZ vkjksfir xzke iapk;r lgk;d dks lquokbZ dk ;qfDr;qDr volj vo'; fn;k tk;sxkA
(l) xzke iapk;r lgk;d ds LoSPNk ls vuqifLFkr jgus ij Hkh mls gVk;k tk ldsxkA
(n) xzke iapk;r }kjk xzke iapk;r lgk;d dh lsokvksa dh vko';drk ugha gksus ij fcuk dkj[CASE NUMBER]k crk;s Hkh mls gVk;k tk ldrk gSA"
6[CASE NUMBER] The selection process had to happen as per the following five conditions mentioned in the aforementioned circular dated 08[CASE NUMBER]11[CASE NUMBER]2016:
"p;au dh izfdz;k &
- xzke iapk;r lgk;dksa dk p;u lacf/kr xzke iapk;r dh xzke lHkk esa fd;k tk;sxkA vkosnd viuk vkosnu ifjf'k"V &2 ij fn;s izk:i ,oa Loizekf[CASE NUMBER]kr nLrkostksa ds lkFk lacf/kr xzke iapk;r dks xzke lHkk ds fnu izkr% 10-30 cts rd lEcaf/kr xzke iapk;r ds xzke lsokd dks izLrqr dj ldsxsaA ,d vH;FkhZ ,d xzke iapk;r esa gh vkosnu dj ldsxkA ,d ls vf/kd LFkku ij vkosnu djuk ik;s tkus ij nksuksa/ lHkh LFkkuksa ds vkosnu jj) le>s tk;sxsA
- vkosnd ds mlh iapk;r lfefr dk fuoklh gksus dk izek[CASE NUMBER]k i= Hkh layXu fd;k tkuk vko';d gksxkA
- ,d fu/kkZfjr fnol ij leLr jkT; esa ,d lkFk xzke lHkkvksa dks vk;ksftr dj p;u dh izfdz;k iw[CASE NUMBER]kZ dh tk;sxhA p;u gsrq vkosnd dk ml xzke lHkk esa O;fDrxr mifLFkr jguk vfuok;Z gksxk] ftlesa mlus vkosnu fd;k gSA
- lacf/kr fodkl vf/kdkjh }kjk viuh iapk;r lfefr dh leLr xzke iapk;rksa esa vko';d lgk;dksa dh p;u ;ksX; la[;k dk fooj[CASE NUMBER]k ,d lkFk ,d LFkkuh; lekpkj i= esa izdkf'kr djok;k tkk;sxkA blds vfrfjDr xzke iapk;r vius dk;kZy; ds lwpuk iVV ij Hkh p;u gsrq fjfDr;ksa dk ,oa xzke lHkk dh fnukad dk izn'kZu lqfuf'pr djsxhA xzke iapk;r vius LFkkuh; {ks= esa xzke iapk;r lgk;d ds p;u gsrq vk;ksftr dh tk jgh xzke lHkk ckcr O;kid izpkj&izlkj lqfuf'pr djsaxhA
- xzke iapk;r }kjk leLr p;u dh izfdz;k xzke lHkk ds fnu gh iw[CASE NUMBER]kZ dj mlh fnu p;fur vkosndksa ds uke vuqeksnu gsrq lacf/kr eq[; dk;Zdkjh vf/kdkjh] ftyk ifj"kn dks izsf"kr djus gksaxsA ftyk ifj"kn esa vxys dk;Z fnol ij eq[; dk;Zdkjh vf/kdkjh / vfr- eq[; dk;Zdkjh vf/kdkjh] lacf/kr iapk;r lfefr ds fodkl vf/kdkjh rFkk ,d ys[kkf/kdkjh/ lgk;d ys[kkf/kdkjh dh lfefr lacf/kr iapk;r lfefr dh leLr xzke iapk;rksa esa gq, p;u dk vuqeksnu djsaxsA vuqeksnu ds i'pkr lacf/kr xzke iapk;r }kjk vkns'k tkjh fd;s tk ldsaxsA lfefr }kjk vuqeksnu ugha fd;s tkus dh n'kk esa iqu% xzke lHkk vk;skftr dh tkdj u;s uke izLrkfor fd;s tkus dh dk;Zokgh dh tk;sxhA"
(4 of 22) [CASE NUMBER]]
7[CASE NUMBER] The State Government further issued a circular dated 27[CASE NUMBER]01[CASE NUMBER]2017, in which the selection process was further clarified[CASE NUMBER] The State Government further issued directions on 01[CASE NUMBER]02[CASE NUMBER]2017[CASE NUMBER] Thus, the purport of the circulars was that as per the criteria, the concerned School Development and Management Committee (SDMC)/School Management Committee (SMC) was to select the candidates and make recommendation for their appointment, and thereafter, the selection of those candidates was supposed to be approved by a District Level Committee comprising of the following:-
"(i) District Education Officer, Primary Education First
- Chairman[CASE NUMBER]
(ii) District Education Officer, Primary Education Second - Member[CASE NUMBER]
(iii)District Education Officer, Secondary Education First - Member[CASE NUMBER]
(iv) Concerned Block Primary Education Officer -
Member Secretary[CASE NUMBER]"
8[CASE NUMBER] The last Committee was having the powers to approve the selection process and pave the way for the requisite appointments[CASE NUMBER] Some of the candidates were given appointments in pursuance of the recommendation of the SDMC/SMC; and some of the candidates though recommended, but were yet to be given appointments[CASE NUMBER]
9[CASE NUMBER] In this particular case, the petitioner was given appointment, however, we are hearing all the cases together, and therefore, another category of the candidates, which consists of those, who were finally approved by the aforementioned District Level Committee, is also taken into consideration[CASE NUMBER]
10[CASE NUMBER] Broadly, for all the candidates, the selection process was over and the topmost level Committee i[CASE NUMBER]e[CASE NUMBER] the District Level Committee had already approved the appointments of all the candidates, some of whom were also given appointments[CASE NUMBER] However, the persons, who were deprived of the appointment preferred the writ petitions before the Principal Seat as well as the Jaipur Bench of this Hon'ble Court viz[CASE NUMBER], S[CASE NUMBER]B[CASE NUMBER]Civil Writ Petition [CASE NUMBER][CASE NUMBER]6023/2017 ([ENTITY] Vs[CASE NUMBER] [ENTITY] & Ors[CASE NUMBER] alongwith 121 other analogous matters, decided on 01[CASE NUMBER]06[CASE NUMBER]2017) and [PRECEDENT][ENTITY] Vs[CASE NUMBER] [ENTITY] & Ors[CASE NUMBER] decided on 24[CASE NUMBER]05[CASE NUMBER]2017), respectively[CASE NUMBER]
(5 of 22) [CASE NUMBER]]
11[CASE NUMBER] The directions given by this Hon'ble Court in [ENTITY] and [ENTITY] (supra) are common[CASE NUMBER] However, the order passed in the case of [ENTITY] (supra) is quoted hereinbelow:-
" All the above-mentioned writ petitions shall stand decided by this common order as the issue involved is identical[CASE NUMBER]
The prayer in the present writ petitions is to set aside the various orders of appointment as well as the selection list itself dated 19[CASE NUMBER]05[CASE NUMBER]2017 which has been challenged on various grounds including malafide, irregularities and defective procedure followed by the Selection Committee i[CASE NUMBER]e[CASE NUMBER] School Development Committee (SDMC)[CASE NUMBER] It was contended that the entire selection was a farce and sham[CASE NUMBER] The identical writ petitions came up for hearing before the learned Single Bench of this Court at Jaipur[CASE NUMBER] The said writ petitions were disposed of vide order dated 24[CASE NUMBER]5[CASE NUMBER]2017 on the stand taken by the State Government with the following directions:-
"(a)[CASE NUMBER] That the State Government shall issue a circular regarding constitution of the committee within one week from the date of receipt of certified copy of this order[CASE NUMBER]
(b)[CASE NUMBER] That from the date of selection of the candidate or within fifteen days from constitution of the committee, whichever is later, any candidate who had participated in the interview, is having grievance and is dissatisfied, may file a representation before the committee[CASE NUMBER]
(c)[CASE NUMBER] That the said committee after looking into the record, shall decide the representation by passing a detailed reasoned speaking order[CASE NUMBER]
(d)[CASE NUMBER] That copy of the order to be passed upon the representation shall be sent to the candidate through registered post[CASE NUMBER]
(e)[CASE NUMBER] That if the candidate who has filed representation, is still aggrieved of the decision, he or she may, within one month from the date of receipt of registered post, take recourse to lawful remedy available to him/her in accordance with provisions of law[CASE NUMBER]
(f)[CASE NUMBER] That for putting the candidates to notice who had participated in the selection process, this order and the circular so issued by the State Government shall be uploaded on the official website of the Rural (6 of 22) [CASE NUMBER]] Development & Panchayati Raj Department and the Education Department (Elementary)[CASE NUMBER]"
It is not disputed that the issue involved is identical[CASE NUMBER]
Today, Mr[CASE NUMBER] [ENTITY], learned Additional Advocate General and Mr[CASE NUMBER] [ENTITY], learned Additional Advocate General has placed on record the Circular dated 27[CASE NUMBER]5[CASE NUMBER]2017 vide which the Committee has already been constituted comprising of District Collector, Chief Executive Officer, Zila Parishad and the District Education Officer (Elementary) in terms of the directions issued vide order dated 24[CASE NUMBER]5[CASE NUMBER]2017 of the learned Single Bench[CASE NUMBER] Circular dated 31[CASE NUMBER]05[CASE NUMBER]2017 has also been placed on record vide which it has been decided to dispose of all the representations filed by the petitioners as well as other effected persons within three months from the last cut off date of filing the representation[CASE NUMBER] The last date of the filing the representation shall be the expiry of 15 days from the Circular dated 27[CASE NUMBER]5[CASE NUMBER]2017 vide which the Committee was constituted[CASE NUMBER]
Besides the above, learned counsel for the petitioners state that the merit list has not been disclosed till date and that the criteria and the procedure followed for the selection has also not been disclosed[CASE NUMBER]
It goes without saying that the Committee shall also look into the said objections raised by the petitioners and accordingly deal with the same while deciding the said representations[CASE NUMBER]
In view of the above, all the above-mentioned writ petitions are disposed of in terms of the order dated 24[CASE NUMBER]5[CASE NUMBER]2017 - [ENTITY] (supra) as well as in view of the Circular dated 27[CASE NUMBER]5[CASE NUMBER]2017 and 31[CASE NUMBER]5[CASE NUMBER]2017[CASE NUMBER]
Mr[CASE NUMBER] [ENTITY], learned counsel for the petitioner states that [CASE NUMBER] is different to the extent that the result of the Gram Panchayat Sahayak has not been declared[CASE NUMBER] The said writ petition is also disposed of with liberty to the petitioner to make a representation to the concerned Committee so constituted for the purpose during the same stipulated period as observed in [CASE NUMBER][CASE NUMBER] The Committee shall consider the representation and decide accordingly[CASE NUMBER]
[CASE NUMBER] have (7 of 22) [CASE NUMBER]] been filed by the selected candidates who are aggrieved with the fact that no appointment letters have been issued to them[CASE NUMBER]
In view of the [CASE NUMBER] -([ENTITY] Vs[CASE NUMBER] [ENTITY] & Ors[CASE NUMBER]) & other connected matters having been disposed of in terms of the order dated 24[CASE NUMBER]5[CASE NUMBER]2017 passed by the learned Single Bench of this Court at Jaipur in [CASE NUMBER] ([ENTITY] Vs[CASE NUMBER] [ENTITY] & Ors[CASE NUMBER]) & Other Connected matters as above, no direction to issue the appointment orders can be passed at this stage[CASE NUMBER] The petitioners who have been selected but no appointment orders have been issued are also at liberty to file their respective representations raising their grievances, if any within the same stipulated period as observed in [CASE NUMBER][CASE NUMBER] The Committee shall thereafter look into the same and pass appropriate orders on their representations in accordance with law[CASE NUMBER]
All the writ petitions are accordingly disposed of in the above[CASE NUMBER]"
12[CASE NUMBER] Thus, the purport of the aforementioned two orders passed by this Hon'ble Court was that in case any person, who did not qualify or did not make it in the selection process, had any genuine grievance, then the same shall be considered by the respondents at length[CASE NUMBER]
13[CASE NUMBER] From a bare reading of the aforesaid directions given by this Hon'ble Court, it is abundantly clear that the Hon'ble Court only wanted the Committee to be constituted, and that, the genuine grievances of the aggrieved persons be redressed by the respondents, while passing a speaking order[CASE NUMBER] However, this Hon'ble Court, at no point of time, wanted the earlier exercise to be brushed aside in mass and also did not wish to have a fresh selection process at any stage[CASE NUMBER]
14[CASE NUMBER] This Hon'ble Court while passing the aforementioned orders, only required the respondents to give an opportunity of hearing to the aggrieved persons[CASE NUMBER] But, at no point of time, the Hon'ble Court wanted the opportunity of hearing to mean that the same shall not be available to the candidates already selected[CASE NUMBER]
15[CASE NUMBER] It is the basic law that opportunity of hearing cannot be denied to any person, even when he has committed a heinous crime in the eye of law[CASE NUMBER] The rule of law is the cardinal principle of this (8 of 22) [CASE NUMBER]] democratic country, where the constitutional value imbibes, at the threshold, the opportunity of hearing, which is expressed in different terms, including the doctrine of audi alteram partem[CASE NUMBER] The Hon'ble Apex Court also, time and again, in various judgments has held that the opportunity of hearing cannot be taken away[CASE NUMBER] Even when the anti national terrorists, some of them in media or the others in person, are said to have committed anti national activities, were permitted complete trial and were given full opportunity of hearing before being hanged for the offence so committed[CASE NUMBER]
16[CASE NUMBER] Since the rule of law itself reflects the opportunity of hearing as a prime condition, therefore, it was imperative upon the respondents to have adhered to this basic principle of law[CASE NUMBER] It is extremely unfortunate that when there is a clash between the selected and non-selected candidates, which is always a sensitive issue in the present times, when the employment is crucial, the respondents-authorities have failed to resolve the issue by adhering to the said principle of law[CASE NUMBER]
17[CASE NUMBER] For protecting the valuable right of opportunity of hearing, the earlier orders, as aforementioned, were passed by this Hon'ble Court, but the said orders have been misconstrued by the respondents, and the respondents, while affording the opportunity of hearing to one set of persons, have taken away the same valuable right from the persons, who were equally entitled for opportunity of hearing and were in fact in a more delicate position, as they had already acquired final approval from the District Level Committee for their appointment, which according to the guidelines of the State Government, was a confirmity for the petitioners, who broadly were the persons suitable for being given appointment and before taking away such a valuable right, a very exhaustive right of hearing ought to have been given to them[CASE NUMBER]
18[CASE NUMBER] On noticing the aforementioned anomaly, which is causing grave injustice to the approved/selected candidates, this Hon'ble Court came to their rescue by passing the following interim order on 03[CASE NUMBER]10[CASE NUMBER]2017:-
" Learned counsel for the petitioner asserts that the name of petitioner had been duly recommended by the School Development & Management Committee (SDMC)/School Management Committee (SMC) and forwarded to the respective Zila Parishads for (9 of 22) [CASE NUMBER]] approval[CASE NUMBER] In some of the cases, the concerned Zila Parishads have approved the recommendation and afforded appointment to the petitioner, while in other cases the matters remained pending at the ends of the respondents[CASE NUMBER]
However, without issuing any notice to the concerned candidates, the respondents have dispensed with the petitioner's engagement or terminated his service, while initiating denovo process of selection, pursuant to the circular [CASE NUMBER][CASE NUMBER][CASE NUMBER] dated 15[CASE NUMBER]09[CASE NUMBER]2017 issued by the State Government[CASE NUMBER]
The contention of the petitioner is that by way of initiating denovo process of selection, the respondents have taken away accrued, vested and crystallized rights of the petitioner, for no fault of him[CASE NUMBER]
Issue notice[CASE NUMBER] Issue notice of the stay application also[CASE NUMBER]
Mr[CASE NUMBER] [ENTITY], AAG, learned Additional Advocate General having entered caveat on behalf of Education Department is directed to accept notices for all the respondents[CASE NUMBER] Mr[CASE NUMBER] [ENTITY], prays for some time to complete his instructions[CASE NUMBER]
Time prayed for is allowed[CASE NUMBER]
List this matter on 09[CASE NUMBER]11[CASE NUMBER]2017[CASE NUMBER]
In the meanwhile, the termination of the service of the petitioner, who has been working as Gram Panchayat Shahayak shall remain stayed[CASE NUMBER]
The respondents are further restrained from proceeding in furtherance of the above referred circular dated 15[CASE NUMBER]09[CASE NUMBER]2017 and undertaking exercise of selection of Gram Panchayat Sahayaks for those Gram Panchayats, for which concerned SDMC/SMC have already made recommendations[CASE NUMBER]
The respondents shall however be free to carry out the process for selection for those Gram Panchayats, for which the concerned SDMC/SMC has not sent the recommendations or list of eligible candidates[CASE NUMBER]"
19[CASE NUMBER] Thus, this Hon'ble Court, while passing the aforequoted interim order, restrained the respondents from terminating the services or the status acquired by the Gram Panchayat Sahayaks, and meanwhile, also restrained the respondents from proceeding ahead with the circular dated 15[CASE NUMBER]09[CASE NUMBER]2017 for undertaking the fresh exercise of selection of Gram (10 of 22) [CASE NUMBER]] Panchayat Sahayaks, for those Gram Panchayats, for which the concerned SDMC/SMC have already made recommendations[CASE NUMBER]
20[CASE NUMBER] Learned counsels for the petitioners, while arguing the matters, laid the thrust upon the fact that the SDMC/SMC and District Level Committee were higher level Committees comprising of responsible officers of the State Government and their final approval could not be brushed aside in a one sided proceeding[CASE NUMBER]
21[CASE NUMBER] Learned counsels for the petitioners further harped that the opportunity of hearing was imbibed in the rule of law, and to maintain the rule of law, it was the duty of the State to have given at least the opportunity of hearing to the petitioners by giving them notice and ascertain the facts, which as per the State, would have rendered the whole selection process meaningless[CASE NUMBER]
22[CASE NUMBER] Learned counsels for the petitioners further pointed out that all the candidates before the Court today as petitioners in all the writ petitions had acquired the final clearance from the SDMC/SMC/District Level Committee and were either appointed or were at the verge of being given appointment[CASE NUMBER]
23[CASE NUMBER] Learned counsels for the petitioners also pointed out that any deprivation at this stage to the persons, who had gone through the complete selection process laid down by the respondents would not only be detrimental to the rule of law, but would also cause serious prejudice to the opportunity of employment, that was secured by the petitioners after finding place in the final approval by the District Level Committee[CASE NUMBER]
24[CASE NUMBER] In support of their submissions, learned counsels for the petitioners have relied upon the precedent law laid down by the Hon'ble Apex Court in [PRECEDENT], relevant para 20 of which reads as under:
"20[CASE NUMBER] The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice[CASE NUMBER] These rules can operate only in areas not covered by any law validly made[CASE NUMBER] In other words they do not supplant the law of the land but supplement it[CASE NUMBER]-The concept of natural justice has undergone a great deal of change in recent years[CASE NUMBER] In (11 of 22) [CASE NUMBER]] the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem)[CASE NUMBER] Very soon there- after a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably[CASE NUMBER] But in the course of years many more subsidiary rules came to be added to the rules of natural justice[CASE NUMBER] Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice[CASE NUMBER] The validity of that limitation is now questioned[CASE NUMBER] If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries[CASE NUMBER] Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries[CASE NUMBER] Enquiries which were considered administrative at one time are now being considered as quasijudicial in character[CASE NUMBER] Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries[CASE NUMBER] An unjust decision in an administrative enquiry may have more far reaching effect than a decison in a quasi-judicial enquiry[CASE NUMBER] As observed by this Court in [PRECEDENT] the rules of natural justice are not embodied rules[CASE NUMBER] What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose[CASE NUMBER] Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that was necessary for a just decision on the facts of that case[CASE NUMBER]"
25[CASE NUMBER] Learned counsels for the petitioners also relied upon the precedent law laid down by the Hon'ble Apex Court in The [PRECEDENT], relevant paras 6 to 8 of which read as under:-
(12 of 22) [CASE NUMBER]] "6[CASE NUMBER] The Mysore High Court, in the judgment under appeal, seems to have boon of opinion that the principle laid down in [PRECEDENT] (supra) was departed from in [PRECEDENT] (supra) and by the Privy Council in [PRECEDENT] (supra)[CASE NUMBER] The Electricity Commissioners' case was followed by this Court in [PRECEDENT] (supra)[CASE NUMBER] The High Court's view seems to have been that this line of reasoning prevented the Court from inferring any procedure apart from that laid down in the statute[CASE NUMBER] It seemed to have been of opinion that only what was laid down in the [ACT] is the [ACT]al law of the land[CASE NUMBER]
This is clear from the following passage in the judgment under appeal:
"The principles of natural justice recognised in this country arc largely if not wholly' moulded by the decisions of the English Courts[CASE NUMBER] In this country, as in England, though the principles of natural justice are of utmost importance in the administration of justice they do not form part of the [ACT]al law of our country except probably when we consider cases falling under [SECTION] of the [ACT][CASE NUMBER] Some of our statutes embody those principles but largely they are the product of judicial decisions[CASE NUMBER] Those principles do not over-ride specific provisions contained in any[CASE NUMBER] statute unless the same comes into conflict with any of the provisions in the [ACT][CASE NUMBER]"
7[CASE NUMBER] We may point out that, in holding the impugned provision void for contravention of [SECTION] of the [ACT], the High Court itself relied on a principle of natural justice inasmuch as it held that a procedure providing ,or due hearing to the party affected before a building was condemned to be demolished was not provided in the impugned Act[CASE NUMBER] In other words, the High Court itself was treating rules of natural justice as part of requirements of our [ACT]al law although they are not specifically conferred upon citizens under a separate heading[CASE NUMBER]
8[CASE NUMBER] We think that the Electricity Commissioners' case (supra) which was followed by this Court in [ENTITY]'s case (supra), was not really a departure from the general principle laid down in [PRECEDENT] (supra), but, it was an attempt to formulate the conditions under which the general principle laid down thereby [ENTITY], C[CASE NUMBER]J[CASE NUMBER], who quoted the Biblical story of how even God Himself had given [ENTITY] an (13 of 22) [CASE NUMBER]] opportunity of answering why he had eaten the forbidden fruit before, expelling him from Paradises was applicable in the circumstances of an increasingly complex economic and social order whose problems compelled the emergence of the welfare socialistic State with its many organs armed with extensive powers[CASE NUMBER] Courts attempted, in the interests of justice, where its imperative demands were not met, to control administrative action by assimilating it to judicial action over which Courts could exercise supervision[CASE NUMBER] In later cases, emphasis was more on the needs of justice and fairness rather than upon the distinction between the judicial and administrative action[CASE NUMBER] Administrative action had, however, to be given free scope within its legitimate sphere without jeopardizing rights of individuals affected[CASE NUMBER] Policies and schemes framed under statutory provisions, which affected rights of individuals could impose the obligations upon the authorities taking what were essentially administrative decisions at points at which they begin to impinge on specific individual rights[CASE NUMBER] It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but, on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding that the "audi alteram partem" rule could be imported[CASE NUMBER] The nature of the hearing would, of course, vary according to the nature of the function and what its just and fair exercise required in the context of rights affected[CASE NUMBER]"
26[CASE NUMBER] Reliance has also been placed by the learned counsels for the petitioners on the precedent law laid down by the Hon'ble Apex Court in [PRECEDENT], relevant paras 17 and 20 of which read as under:
"17[CASE NUMBER] The principles of natural justice cannot be put in a strait-jacket formula[CASE NUMBER] It must be viewed with flexibility[CASE NUMBER] In a given case, where a deviation takes place as regard compliance of the principles of natural justice, the Court may insist upon proof of prejudice before setting aside the order impugned before it[CASE NUMBER] [See [PRECEDENT], ][CASE NUMBER]
20[CASE NUMBER] This Court in Canara Bank (supra) while following [ENTITY] (supra) held:
"19[CASE NUMBER] Concept of natural justice has undergone a great deal of change in recent years[CASE NUMBER] Rules of natural justice are not rules embodied always expressly in a [SECTION]] statute or in rules framed thereunder[CASE NUMBER] They may be implied from the nature of the duty to be performed under a statute[CASE NUMBER] What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held[CASE NUMBER] The old distinction between a judicial act and an administrative act has withered away[CASE NUMBER] Even an administrative order which involves civil consequences must be consistent with the rules of natural justice[CASE NUMBER] The expression "civil consequences"
encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages[CASE NUMBER] In its wide umbrella comes everything that affects a citizen in his civil life[CASE NUMBER]"
27[CASE NUMBER] Learned counsels for the petitioners have also placed reliance on the precedent law laid down by the Hon'ble Apex Court in [PRECEDENT], relevant para 17 of which reads as under:-
"17[CASE NUMBER] How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process[CASE NUMBER] They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men[CASE NUMBER] The first rule is `nemo judex in causa sua' or `nemo debet esse judex in propria causa sua' as stated in [PRECEDENT] that is, `no man shall be a judge in his own cause'[CASE NUMBER] [ENTITY] used the form `aliquis non debet esse judex in propria causa quia non potest esse judex at pars' (Co[CASE NUMBER]Litt[CASE NUMBER] 1418), that is, `no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party'[CASE NUMBER] The form `nemo potest esse simul actor et judex', that is, `no one can be at once suitor and judge' is also at times used[CASE NUMBER] The second rule is `audi alteram partem', that is, `hear the other side'[CASE NUMBER] At times and particularly in continental countries, the form `audietur at altera pars' is used, meaning very much the same thing[CASE NUMBER] A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely (15 of 22) [CASE NUMBER]] `qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit' that is, `he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See [ENTITY]'s case ([PRECEDENT] or in other words, as it is now expressed, `justice should not only be done but should manifestly be seen to be done'[CASE NUMBER] Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon[CASE NUMBER] All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated[CASE NUMBER]"
28[CASE NUMBER] Reliance has also been placed by the learned counsels for the petitioners on the precedent law laid down by the Hon'ble Apex Court in [PRECEDENT], relevant paras 42 and 91 of which read as under:-
"42[CASE NUMBER]In short, the general principle-as distinguished from an absolute rule of uniform application-seems to be that where a statute does not in terms, exclude this rule of prior hearing but contemplates a post- decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage[CASE NUMBER] Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, shown of all its formal trappings and dilatory features at the pre- decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need or utmost promptitude[CASE NUMBER] In short, this rule of fairplay "must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands"[CASE NUMBER] The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications[CASE NUMBER] But, to recall the words of [ENTITY], J[CASE NUMBER], the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise[CASE NUMBER]
(16 of 22) [CASE NUMBER]]
91[CASE NUMBER] In sum, for all the reasons aforesaid, we are of the view that it is not reasonably possible to construe [SECTION] as universally excluding, either expressly or by inevitable intendment, the application of the audi alteram partem rule of natural justice at the pre-takeover stage, regardless of the facts and circumstances of the particular case[CASE NUMBER] In the circumstances of the instant case, in order to ensure fairplay in action it was imperative for the Government to comply substantially with this fundamental rule of prior hearing before passing the impugned order[CASE NUMBER] We therefore, accept the two-fold proposition posed and propounded by Shri [ENTITY][CASE NUMBER]"
30[CASE NUMBER] Learned counsels for the petitioners further relied upon the precedent law laid down by the Division Bench of this Hon'ble High Court in [PRECEDENT], relevant paras 9 and 10 of which read as under:-
"9[CASE NUMBER] Our attention has also been drawn to a Full Bench decision of the Allahabad High Court in [PRECEDENT] , wherein it has been observed:
"that the employees of statutory corporations, even in the absence of any Service Rules are entitled to the benefit of principles of natural justice, which would also apply in the case of employees of the Corporation in the matter of termination of services in case their services are terminated though by an innocuous order but by way of punishment without giving them an opportunity of hearing[CASE NUMBER]"
It was further held that where the services of the employees of a Mandi Samiti were terminated when there were no service rules in existence by way of punishment in as much as termination was made on the basis of arrest of the employees on the alleged charge of issuing forged passes and on the basis of the recommendation made by the Superintendent of Police to terminate their services and no opportunity of hearing was given to the employees, such termination of services was held to be illegal being violative of [SECTION] and principles of natural justice[CASE NUMBER] In such a case, the relief could not be denied to the employees on the ground that it was a contractual matter and that Samiti was within its right to terminate the services of the employees[CASE NUMBER] It was also held that the employment of the respondent was public employment and the employer could not (17 of 22) [CASE NUMBER]] terminate the services of its employee without due enquiry in accordance with the Statutory Regulations, if any inforce or in the absence of such Regulations, in accordance with the rules of natural justice[CASE NUMBER] Such an enquiry in to the conduct of a public employee is of a quasi judicial character[CASE NUMBER] The respondent was employed by the appellant Corporation in exercise of powers conferred on it by the statute which created it[CASE NUMBER] The appellants power to dismiss the respondent from service was not derived from the Statute[CASE NUMBER] The Court would, therefore, presume the existence of a duty on the part of the dismissing authority to observe the rules of natural justice[CASE NUMBER] The rules of natural justice in the circumstances of the case required that the respondent should be given a reasonable opportunity to deny his guilt, to defend himself and to establish his innocence which means and includes opportunity to cross-examine the witnesses relied upon by the appellant Corporation and an opportunity to lead evidence in defence of the charge as also a show cause notice for the proposed punishment[CASE NUMBER]
10[CASE NUMBER] [SECTION] of the aforesaid Standing Orders also provides that the employee has to be informed in writing about the alleged misconduct and he has to be given a reasonable opportunity to explain the charges levelled against him[CASE NUMBER] Thus, the charges have to be framed and they have to be served on the delinquent and if the employer wanted to terminate the services of the delinquent employee as a measure of penalty even without waiting for the decision of the Criminal Court, the employer should have held an enquiry about his conduct and if it was found that the employee has really indulged in such an affair or is guilty of the aforesaid misconduct then alone his services could have been terminated by his employer[CASE NUMBER] In this case, where employee's services have been terminated only a show cause notice was given to the respondent employee and a reply was obtained from him but when the respondent employee has contested the charges levelled against him, he should have been served with a charge-sheet or at least a statement of allegations[CASE NUMBER] As the petitioner has contested the allegation of distilling the illicit liquor and has stated that in his guard duty, he tried to stop certain persons to cut trees in the farm area, at that moment his blanket and stick were snatched, he should have been afforded an opportunity to support his contention[CASE NUMBER] It would be better if the Department has also examined witnesses in support of the allegations made against the petitioner because no finding of a criminal court (18 of 22) [CASE NUMBER]] has been brought on record whether the petitioner was at all involved in the incident and, therefore, an opportunity of hearing should have been given to him to show that he is not guilty and that has not been done in this case[CASE NUMBER] It appears that the principles of natural justice have been violated in this case and, therefore, the learned labour court as also the learned Single Judge were right in holding that such a termination cannot sustain[CASE NUMBER] We are firmly of the opinion that the judgment of the learned single Judge calls for no interference[CASE NUMBER]"
31[CASE NUMBER] Learned Additional Advocate General, Shri [ENTITY], however, strongly refuted the issues raised on behalf of the petitioners and stated that the respondents had made due application of mind before going ahead with the process again for the disputed candidates[CASE NUMBER]
32[CASE NUMBER] Learned Additional Advocate General further pointed out that for every disqualification of the selected candidates, which is there on record as Annexure-6, there was a reason, and such reason was arrived at by going through the representations as well as the documents of the candidates, who had made such complaint/representation[CASE NUMBER]
33[CASE NUMBER] Learned Additional Advocate General also pointed out that the respondents were under a legal obligation to make compliance of the orders passed by this Hon'ble Court by taking appropriate decision on the representations of the persons, who could not make it in the selection process concerned[CASE NUMBER] Learned Additional Advocate General further pointed out that no pick and choose policy has been adopted and across the board whatever representations have been received from the candidates, who could not make it in the selection process, were duly considered by the Committee[CASE NUMBER]
34[CASE NUMBER] Learned counsel, Mr[CASE NUMBER][ENTITY] has also addressed this Court on behalf of the one of the representatives of the ousted candidates and has pointed out that it was not their fault, on account of which the petitioners have been ousted and their duty was only to put the grievances before the respondents, which they appropriately made, and then the process to be adopted was the look out of the respondents-authorities[CASE NUMBER] It has also been argued that an application for impleadment has also been filed[CASE NUMBER] The said application stands allowed, for the reasons mentioned therein and thus, the complete arguments of Mr[CASE NUMBER][ENTITY], learned counsel (19 of 22) [CASE NUMBER]] regarding the applicant putting the grievances before the respondents-authorities, have been taken note of[CASE NUMBER]
35[CASE NUMBER] After hearing the learned counsel for the parties and perusing the record of the case, this Court is of the opinion that the State had the requirement of the posts of the Gram Panchayat Sahayaks, and therefore, the appropriate amendments were made by incorporating [SECTION] by way of the [ACT][CASE NUMBER] After incorporating the said Sub-rule (3), the Gram Panchayat Sahayaks were to be selected, recommended and appointed, as per the policy laid down by the respondents in various circulars[CASE NUMBER] This policy included screening of the petitioners coupled with the recommendations of the SDMC/SMC, which was finally forwarded to the District Level Committee before the final approval for the appointment was received[CASE NUMBER]
36[CASE NUMBER] Thus, the petitioners, strictly in accordance with the policy laid down by the respondents, have undergone the selection process and have qualified for being finally appointed and many of them have been given appointment, however, in some of the cases, the appointment is only waiting for the orders to be issued in that regard[CASE NUMBER] Thus, all the candidates have completely gone through the selection process and are entitled for being appointed as Gram Panchayat Sahayaks[CASE NUMBER]
37[CASE NUMBER] This Court has carefully gone through the earlier orders, as aforementioned, passed by this Hon'ble Court in the matters of [ENTITY] and [ENTITY] (supra), and this Hon'ble Court while issuing directions to the respondents had only kept in mind that the appropriate opportunity of hearing had to be given to the persons, who were left out and nothing more[CASE NUMBER] For making such opportunity of hearing fruitful and for making the process of redressal of the grievances confidence-worthy, this Hon'ble Court directed the constitution of a Committee, and thereafter, disposal of the representations by a detailed speaking order before communication of the same to the candidate concerned[CASE NUMBER]
38[CASE NUMBER] The respondents, without due application of mind, have passed a mechanical order on consideration of the representations, by passing the fresh circular dated 15[CASE NUMBER]09[CASE NUMBER]2017, whereby fresh selection process has been introduced wherever the appointment on the post of Gram Panchayat Sahayaks (20 of 22) [CASE NUMBER]] was disputed by the persons making such representations[CASE NUMBER]
39[CASE NUMBER] The respondents-authorities rather than acting as Grievance Redressal Cell, as per the earlier orders of this Hon'ble Court, have opened a new Pandora Box and have acted in a very unusual manner by ousting or depriving the selected/appointed candidates of their rights without giving them any opportunity of hearing[CASE NUMBER] It can be clearly seen that the right, which was to be protected by the respondents, on the direction of the Hon'ble Court, has in fact more deeply been infringed by the respondents, as while hearing the grievances again, the respondents have trampled over the feet of the persons duly selected/appointed[CASE NUMBER] It is a mockery of justice that the candidates, whose appointments have been approved by the District Level Committee, have been deprived of their valuable right to get appointment, that too, in a one sided proceeding, without giving them any opportunity of hearing, while only relying upon the complaints/representations being made by the ousted persons, who could not make it in the selection process[CASE NUMBER]
40[CASE NUMBER] The respondents owed a serious duty to have maintained the balance between the two sets of candidates, whereas it looks that the respondents are perpetuating the miseries of unemployed youth by putting them into the litigation again and again and forcing them to take recourse of the Hon'ble Court, and thus, the respondents are not making their own sincere efforts to redress the grievances of the aggrieved persons[CASE NUMBER]
41[CASE NUMBER] The doctrine of audi alteram partem is a cardinal principle of the rule of law, and as has been previously noticed by this Court, the same has been imbibed deep into the roots of the rights available to the citizens of this country[CASE NUMBER] The respondents have miserably failed to create redressal out of the mechanism provided by this Hon'ble Court on the earlier occasion, and have rather created the chaos amongst the unemployed youth by pitting them against each other, as both the sets of appointed/selected versus ousted candidates have made their own camping grounds and in fact contesting each other by their precious youthful energies[CASE NUMBER] This Court deprecates the said practice of non-application of mind adopted by the respondents/authorities[CASE NUMBER]
(21 of 22) [CASE NUMBER]]
42[CASE NUMBER] This Court takes note of the fact that all the impugned orders, including the fresh circular dated 15[CASE NUMBER]09[CASE NUMBER]2017 and the termination orders, which have been passed, are not only cryptic and one sided, but also amount to travesty of justice for the persons, who have already been selected/appointed[CASE NUMBER] The termination order clearly reflects only one sided consideration, whereby the persons, who were not approved/selected gave representations, and their verbatim version has been reproduced in the termination order, without any application of mind or without going into the fact that the petitioners themselves have a valuable right to rebut the facts mentioned in such representation[CASE NUMBER]
43[CASE NUMBER] The respondents have initiated the process for rest of the Gram Panchayats, where the dispute arose out of the decisions taken by the SDMC/SMC and District Level Committee and have passed the circular dated 15[CASE NUMBER]09[CASE NUMBER]2017[CASE NUMBER] Thus, the irresponsible conclusion has been made by the respondents-authorities regarding the disputes in respect of approval/appointment, by holding the approvals for selection/appointment bad, even without giving the minimum required opportunity of hearing or any kind of notice to the petitioners[CASE NUMBER] The petitioners, if at all, had committed any wrong, then also, they should have been given at least one proper opportunity of hearing, to rebut the facts mentioned in the representation of the ousted candidates, so as to defend their appointment/selection[CASE NUMBER]
44[CASE NUMBER] Thus, in light of the aforesaid observations as well as the precedent laws cited by learned counsel for the petitioners, the present writ petitions are allowed and the respondents are directed to give the petitioners proper opportunity of hearing by calling them or taking their representations regarding the issues, which are required to be considered on the complaint/representation received from the ousted candidates[CASE NUMBER] The reasons for ouster are to be specifically communicated to the petitioners so that they could represent and rebut such reasons of ouster by bringing on record their own defence[CASE NUMBER] The Committee has already been constituted in pursuance of the orders of this Hon'ble Court passed in the matters of [ENTITY] and [ENTITY] (supra), and therefore, no fresh Committee needs to be constituted[CASE NUMBER] The respondents shall be required to communicate the reasons for the proposed ouster of the petitioners, and on such communication, a proper opportunity of hearing shall be given to the petitioners (22 of 22) [CASE NUMBER]] to defend their appointment/selection[CASE NUMBER] After such exercise is completed, the respondents shall be free to take fresh stand in respect of the appointments based on merit, the reasons for ouster and the defence submitted by the petitioners[CASE NUMBER] After such opportunity of hearing is completed with proper application of mind by the concerned authorities, then the valuable right of appointment/selection shall be appropriately reconsidered by the respondents, if so required[CASE NUMBER] Until such exercise is completed, the de novo process of selection pursuant to the aforementioned dated 15[CASE NUMBER]09[CASE NUMBER]2017 would not operate only for the Gram Panchayats, where the selection has been finally approved by the District Level Committee[CASE NUMBER] It is made clear that the respondents shall meanwhile maintain the status quo in respect of the services of the petitioners[CASE NUMBER] It is also made clear that all the impugned termination orders stand quashed and the respondents shall be required to pass fresh orders after the proper opportunity of hearing is given to the persons, so selected[CASE NUMBER] Since the persons ousted have already been given opportunity of hearing and their representation, in light of the orders passed by this Hon'ble Court in [ENTITY] and [ENTITY] (supra), therefore, all those shall be kept into consideration[CASE NUMBER] However, since the right has already accrued in favour of the petitioners for being selected/appointed, therefore, the proper opportunity of hearing to the petitioners shall be duly granted by the Committee concerned, before passing fresh orders, strictly in accordance with law[CASE NUMBER] Since the right of opportunity of hearing should be granted only to the vigilant citizens, therefore, this order shall operate qua the present petitioners only[CASE NUMBER] It is needless to say that the petitioners shall cooperate by all means in the process of opportunity of hearing to be stipulated by the respondents in a time bound manner[CASE NUMBER]"
2[CASE NUMBER] In light of the aforementioned judgment, the present writ petition is allowed in the same terms[CASE NUMBER]
(DR[CASE NUMBER] [ENTITY] /zeeshan/