IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 610 OF 2001 (S/S) Daya Chandra and others. …………Petitioners. Versus State of U.P., through Secretary, Department of Social Welfare, U.P., Lucknow and others. ……….Respondents. Mr Manoj Tiwari, learned counsel for the petitioners. Smt. Beena Pandey, learned Standing Counsel for the respondents no. 1 and 2. Mr. H.M. Raturi, learned Standing Counsel for the respondent no. 3. 21.7.2008 Hon’ble P.C. Verma, J. Heard Mr. Manoj Tiwari, learned counsel for the petitioners, Smt. Beena Pandey, learned Standing Counsel for the respondents no. 1 and 2 and Sri H.M. Raturi, learned Standing Counsel for the respondent no. 3. 2. By means of present writ petition, petitioners have challenged the orders dated 27.7.1998 and 1.9.1998 passed by the Director, Social Welfare, U.P., Lucknow and District Social Welfare Officer, Almora. Further prayer has been made for a writ of mandamus commanding the respondents not to interfere in the peaceful functioning of the petitioners as Class-IV employees in Rajkiya Anusuchit Jati Chhatrawas, Almora and to pay the due salary to the petitioners regularly month to month as and when it falls due. 3. Brief facts of the case are that the petitioners were appointed on Class-IV posts on the Cook, Kahar, Chowkidar on different consolidated salaries on different dates of year, 1994, 1995, 1996 and 1997. The State Government vide Govt. Order dated 30.3.1997 created some posts in Class-IV category in the Government Scheduled Caste Students Hostel, Almora. Since the petitioners were already working on consolidated salary, however, in anticipation of being regularized, they made a representation to the respondent no. 3 in order to regularize their services taking into consideration the experience, length of service, work and conduct. On the representation of the petitioners, the respondent no. 3 vide his order dated 9.4.1997 regularized the services of the petitioners against the new posts created by Govt. Order dated 30.3.1997. Pursuant to that order, petitioners joined their duties on their respective posts on 10.4.1997 and were also paid their duly salary upto the month of July, 1997. Thereafter, the respondent no. 3 vide his office order dated 1.9.1998 cancelled the earlier order dated 9.4.1997 whereby the services of the petitioners had been regularized on their respective posts. The reason which was given in cancelling the order dated 9.4.1997 is that the Directorate vide order dated 9.4.1997 has cancelled the order dated 9.4.1997. The grievance of the petitioners is that neither any notice nor any opportunity of hearing has been given to them before canceling the order dated 9.4.1997 and cancellation of the order dated 9.4.1997 whereby their services of the petitioners were regularized is wholly arbitrary and unreasonable. 4. Against the petitioners’ averments, the respondents have filed a counter affidavit. In paragraph (iii), it has been stated that the order passed by the respondent no. 3 was not as per the Government Order issued earlier and he was not the competent appointing authority with regard to the appointment of the petitioners. It has further been stated that as per the Govt. Orders issued in the year, 1978 and 1981, the appointing authority of the Class IV posts was prescribed therein was the District Social Welfare Officer / District Probation officer, but after issuance of the G.O. dated 25.11.1994, the power of appointment of the Class IV employees has been vested in the Assistant Director of the Department of the Social Welfare. 5. Against the aforesaid, learned counsel for the petitioners has filed a rejoinder affidavit stating therein that the petitioners were appointed on ad hoc basis on consolidated salary and it was not an honorary appointment. It has further been stated that the services of the petitioners were regularized against duly sanctioned posts and as the respondent no. 3 is head of the office at the District Level, he is competent enough to make appointments on Class IV posts. 6. Learned counsel for the petitioner has referred the judgment dated 25th September, 2003 passed by this Court in Writ Petition No. 236 (S/S) of 2000 Pooranj Singh Vs. State of Uttaranchal and others and further judgment dated 2nd April, 2008 passed by this Court in Writ Petition (S/B) 1397 of 2002 Karan Singh Vs. State of Uttaranchal. 7. In the aforesaid two judgments referred by the learned counsel for the petitioners, I, by relying upon the judgment of Basudeo Tiwary v. Sido Kanhu University & Ors. reported in 1998 (6) J.T. 464, have observed that where the provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorized manner, the condition precedent for exercise of this power is that an appointment had been contrary to the Act, rules, statutes and regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or regulations, etc., a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry, the person whose appointment is under enquiry will have to be issued a notice. If notice is not given to him, then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable. 8. In the present case too, undisputedly, the petitioners have not been served by any notice prior to termination of their services. 9. In view of the facts and circumstances of the case as well as relying upon the aforesaid judgment, the impugned order 27.7.1998 and 1.9.1998 are set aside. 10. Writ petition is allowed. No order as to costs. (P.C.Verma, J.) 21.7.2008 Rathour