1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Pawan Kumar v. State of Rajasthan & Ors. S.B.CIVIL WRIT PETITION NO.1444/1997 under Article 226 of the Constitution of India. Date of Order :: 17th February, 2009 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.S.Singhvi for the petitioner. Mr. Rajesh Joshi] Mr. D.S.Rathore ] for the respondents. .... BY THE COURT : The petitioner, a Commerce Graduate, claimed appointment on compassionate grounds being a ward of Late Shri Madan Lal Arora, who died while in service of Gajsinghpur Kriya Vikriya Sahakari Samiti Ltd. (hereinafter referred to as “the society”) as Accountant-cum-Manager. The society unanimously resolved on 28.11.1996 to provide appointment to the petitioner on compassionate grounds with immediate effect. The resolution aforesaid was confirmed by the competent authorities of the Department of Cooperative Societies and by a communication dated 7.1.1997 it was also made clear by the Joint Registrar, Cooperative Societies that Late Shri Madan Lal Arora was 2 substantively holding the post of Accountant and that was lying vacant, therefore, appointment to his ward could be given on the post aforesaid. The Chief Manager of the society accordingly passed an order dated 17.1.1997 giving appointment to the petitioner as Accountant in the pay scale of Rs.1400-2600. The Registrar, Cooperative Societies, Government of Rajasthan by an order dated 21.1.1997 cancelled the earlier communication dated 7.1.1997 and also instructed the Joint Registrar, Cooperative Societies, Bikaner to take necessary action regarding appointment of the petitioner on compassionate grounds as per the department's circular dated 21.12.1995. The circular dated 21.12.1995 prescribes that the appointments on compassionate grounds is not a right for the wards of a deceased employee of a cooperative society and it shall only be a priority while making recruitment to any post with society. The Joint Registrar accordingly by a telegraphic order dated 24.1.1997 rescind the resolution dated 28.11.1996 and the society accordingly by an order dated 10.2.1997 terminated the petitioner from service. Being aggrieved by the same, this petition for writ is preferred. The contention of counsel for the petitioner is that the respondents terminated the petitioner in flagrant violation of principles of natural justice 3 and that is highly unjust and arbitrary. It is also asserted that the resolution dated 28.11.1996 could have not been rescind by the Joint Registrar, Cooperative Societies without affording an opportunity of hearing to the petitioner as a valuable right was existing in his favour in view of the appointment accorded under the order dated 17.1.1997. Beside the above, it is strenuously urged by counsel for the petitioner that the respondent society was having a vacant post of the Accountant and, therefore, an appropriate decision was taken by the society to appoint the petitioner and as such the interference by the government authorities that resulted in cancellation of appointment of the petitioner is absolutely unwarranted. In reply to the writ petition, the stance of the respondents is that as a matter of fact appointment was accorded to the petitioner as Accountant despite non availability of the post. The single post of Accountant available with the cooperative society was occupied by one Shri Bhagwan Das. As per the respondents the appointment of the petitioner was perse illegal, therefore, while terminating that no need was there to provide any opportunity of hearing. By way of filing rejoinder, it is pointed out by the petitioner that Shri Bhagwan Das was working in 4 capacity of the Manager and not as Accountant whereas Late Shri Madan Lal Arora, father of the petitioner, was holding the post of Accountant and that was never filled in after his death. Heard counsel for the parties. It is not in dispute that by an order dated 17.1.1997 an appointment was given to the petitioner as Accountant with society and in pursuant thereto he joined the services. A valuable right, therefore, certainly accrued in favour of the petitioner and that could have not been disturbed without affording an opportunity of hearing to him. True it is, that the resolution dated 28.11.1996 was rescind by the competent authority of the Department of Cooperatives and, therefore, the society as a matter of fact was having no option but to terminate the petitioner from service, however, the Registrar, Cooperative Societies should have not rescind the resolution dated 28.11.1996 without providing an opportunity of hearing to the petitioner. This Court in Bhanwar Singh v. State of Rajasthan & Ors., WLR 1992 (S) Raj 567, while examining a similar question, held as under:- “It is settled principle of law that no order can be passed affecting rights of a person unless he has been given an opportunity of being heard in the matter. Ours is a society governed by rule of law and all actions of 5 administrative authority must be governed by basic legal doctrines. This is true that Section 32 of the Cooperative Societies Act does not speak of any opportunity of hearing to an employees to be affected by order passed with this Section by the Registrar, Cooperative Societies. But as stated above, the order Annex. 14 seriously and gravely prejudices the rights of the petitioner. This is true that the petitioner was inducted against a temporary post, which was to last during the course of the Antyoday Project. But this is equally true that the Registrar Cooperative Department, Rajasthan by latter Annex. 2 dated 11.3.83 directed absorption of the staff serving under the Antyoday Scheme in the regular cadre of Bank. This order conferred a valuable right upon the petitioner, it conferred a right on him to be absorbed under the Bank. The resolution of the Board of Directors of the bank recommended appointment of the petitioner to the post of Assistant Executive Officer. This resolution also further conferred a valuable right upon the petitioner. By Annex. 14, the Joint Registrar, Cooperative Societies purported to set at naught the twin valuable rights which had accrued in favour of the petitioner. Hence, it was obligatory and mandatory for the Joint Registrar, Cooperative Societies, Bikaner to hear the petitioner before passing order Annex. 14.” In the instant matter a substantive appointment was given to the petitioner on compassionate grounds being ward of a deceased employee of the society, therefore, a valuable right 6 was certainly operating in his favour and that could have not been interfered by the Registrar, Cooperative Societies even while exercising powers under Section 32 of the Rajasthan Cooperative Societies Act, 1965 without affording an opportunity of hearing to him. As such the order rescinding the resolution dated 28.11.1996 and its consequential order of termination of the petitioner is apparently bad. I also found force in argument of counsel for the petitioner that Late Shri Madan Lal was holding the post of Accountant with society and after his death the post aforesaid was lying vacant and as such the respondents are wrong in saying that no post of Accountant was available with the society. According to staffing strength on which the respondents are relying, one post of Accountant was available with the society and that was occupied by Late Shri Madan Lal Arora. No appointment to the post of Accountant, even as per the respondents, was made after death of Shri Madan Lal Arora except the appointment given to the petitioner. The respondents certainly have said in reply to the writ petition that the post of Accountant was occupied by Shri Bhagwan Das but no explanation is available and counsel for the respondents also failed to satisfy the Court during the course of arguments that as and when Shri Bhagwan Das was appointed as Accountant. For the sake of argument, even if it is assumed that the appointment was given to Shri Bhagwan 7 Das as Accountant after death of Shri Madan Lal Arora, then no explanation is available with the respondents as to why priority was not given to the petitioner for appointment on the post aforesaid as required under the circular dated 21.12.1995. It is relevant to note that in para 11 of the reply the respondents have said that Shri Bhagwan Das was working as Manager of the society. In such state of facts, no doubt remains that the post of Accountant was lying vacant with society on 17.1.1997. In view of whatever discussed above, I am inclined to accept this petition for writ. Accordingly, the same is allowed. The order dated 10.2.1997 passed by the Chief Manager of the respondent society is declared illegal and, therefore, the same is quashed. The order dated 24.1.1997 rescinding the resolution dated 28.11.1996 is also declared illegal and, therefore, the same also stands quashed. The respondents are directed to reinstate the petitioner with the respondent society in the capacity of Accountant with all consequential benefits except the back wages. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.