HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1103 (SS) of 2008 Sanjay Kumar and others …Petitioners Versus State of Uttarakhand and others …Respondents Mr. Rakesh Thapliyal, Mr. Subhash Upadhyay, Mr. Paresh Tripathi and Mr. M.K. Ray, learned counsel for the petitioners. Mr. N.P. Shah, learned Standing Counsel for the State of Uttarakhand/respondents. Dated: November 26, 2009 Hon’ble V.K. Bist, J. Heard learned counsel for the parties. By means of this petition the petitioners have challenged the order-dated 27.07.2007 passed by District, Ayurvedic and Unani Services Officer, Dehradun by which the services of the petitioners were terminated. Brief facts of the case are that the State Govt. vide Govt. Order dated 24th September, 2008 accorded approval for initiating process of selection against the vacant Class-IV post in the establishment. Consequent upon that G.O., the Director, Ayurvedic and Unani Services, vide circular dated 13.10.2008 instructed all the District Ayurvedic and Unani Officers to initiate the process of selection. Averment of the petitioners is that vide G.O. dated 14.07.2005 followed by G.O. dated 22nd August, 2005 the posts of Class IV employees were to be filled up exclusively by those persons who were already working in the department on part time basis or amongst surplus employees. It has been averred in the petition that the State Government vide order no. 1427/XXVIII (1)-2005-61/2005 dated 22.08.2005 sanctioned 13 temporary Class-IV posts in the State Ayurvedic Hospitals. In the said government order it was provided that newly created/sanctioned Class-IV posts shall be filled from already 2 working part time sewak/sweeper or by surplus staff. Relevant portion of the Government order is being quoted below:- “mDr in/kkjdksa dks osru ds vfrfjDr 'kklu }kjk le;&le; ij fuxZr 'kklukns’kks ds vuqlkj eagxkbZ HkRr o vU; HkRrs ns; gksxsaA prqFkZ Js.kh deZpkfj;ksa ds in foHkkx esa iwoZ ls dk;Zjr v’kadkfyd lsod@LoPNd ls vFkok ljIyl dkfeZdks ls lqlaxr fu;ekoyh ds izkfo/kkuksa ds vuqlkj Hkjs tk;sxsaA” Initially the petitioners were engaged as part time sweeper/sewak under Regional Ayurvedic and Unani Officer of different districts and in pursuance of the aforesaid Government Orders dated 14.07.2005 and 22.08.2005 the petitioners were absorbed/adjusted/appointed by the respondents in the department in pay scale of Rs. 2550-55- 2660-3200. It was mentioned in the order that the absorption/ adjustment/appointment of the petitioners was purely temporary and can be cancelled without prior notice. The said absorption/adjustment/appointment of the petitioners was done against sanctioned vacant posts on the basis of the recommendation of duly constituted Selection Committee. Thereafter, the petitioners continued to work in the department but all of sudden the termination orders were passed on 27.07.2007 terminating the services of the petitioners. These termination orders were passed in pursuance to the direction issued by the Director, Ayurvedic and Unani Services, Dehradun, Uttarakhand on 23.07.2007. The letter dated 23rd July 2007 on which basis the termination order was passed as well as termination order of one of the petitioners dated 27.07.2007 are being quoted below:- Letter dated 23.07.2007 written by the Director:- izs"kd] funs’kd] vk;qosZfnd ,oa ;wukuh lsok;sa mRrjk[kaM nsgjknwu 3 lsok esa] ftyk vk;qosZfnd ,oa ;wukuh vf/kdkjh mRrjdk’kh] fVgjh] nsgjknwu] vYeksM+k] fiFkkSjkx<+A la[;k& th 187@2002@vf/k0@3814&3819 fnukad 23&7&2007 fo"k;& prqFkZ Js.kh ds inksa ij dh x;h voS/k fu;qfDr;ksA ds laca/k esaA egksn;] mijksDr fo"k;d 'kklu ds v/kZ’kkldh; i= la[;k 178@izlfpLokid@2007 nsgjknwu fnukad 12&7&2007 ls izkIr funsZ’kksa ds dze es lwfpr djuk gS fd vkids ftykUrxZr prqFkZ Js.kh ds inks ij dh x;h voS/k fu;qfDr;ksa dk rRdky fcuk fdlh foyEc ds lekIr djrs gq;s d`r dk;Zokgh ls funs’kky; dks voxr djkuk lqfuf’pr djsaA Hkonh; g0&viBuh; ¼Mk0 iwtk Hkkj}kt½ funs’kd Order dated 27.07.2007:- dk;kZy; ftyk vk;qosZfnd ,oa ;wukuh vf/kdkjh nsgjknwu la[;k% 1691&97@2007&08 fnukad% 27 tqykbZ 2007 vkns’k 'kklu ds v)Z 'kkldh; i= la[;k 178@izlfpLokid@2007 fnukad 12&07&2007 rFkk funs’kd vk;qosZfnd ,oa ;wukuh lsok;sa] mRrjk[kaM] nsgjknwu ds i= la[;k th&187@2002@vf/k0@3814&3819 fnukad 23&07&2007 ds vuqikyu esa Jh lat; dqekj] lsod dh fu;qfDr rRdky izHkko ls lekIr dh tkrh gSA Jh lat; dqekj] lsod }kjk fpfdRlkf/kdkjh jktdh; vk;qosZfnd fpfdRlky; ukx/kkr] nsgjknwu ftyk vk;qosZfnd ,oa ;wukuh vf/kdkjh nsgjknwu la[;k ,oa fnukad rnSoA izfrfyfi% fuEufyf[kr dks lwpukFkZ ,oa vko’;d dk;Zokgh gsrq izsf"kr%& 1 funs’kd vk;qosZfnd ,oa ;wukuh lsok;sa] mRrjk[kaM] nsgjknwu dks muds i= la[;k th&187@2002@vf/k0@3814&3819 fnukad 23&07&2007 ds vuqikyu esaA 2 eq[; dks"kkf/kdkjh] nsgjknwuA 3 fpfdRlkf/kdkjh] jktdh; vk;qosZfnd fpfdRlky;] ukx/kkr nsgjknwu dks bl funsZ’k ds lkFk fd Jh lat; dqekj] lsod dks mDr vkns’k gLrxr djkrs gq, rRdky inP;qr djrs gq, vuqikyu vk[;k ,oa dk;ZeqDr izek.k&i= O;fDrxr #i ls v/kksgLrk{kjh dks miyC/k djkuk lqfuf’pr djsaA 4 ys[kk lgk;d dk;kZy; dks osru la’kks/kukFkZA 5 fu;qfDr i=koyhA 6 xkMZ QkbyA ftyk vk;qosZfnd ,oa ;wukuh vf/kdkjh nsgjknwu 4 The order of the Director, Ayurvedic and Unani dated 23.07.2007 was issued pursuant to the letter of the Principal Secretary Medical Health dated 12th July 2007. The letter dated 12th July 2007 written by the Principal Secretary, Medical Heath is also quoted below:- fotsUnz iky mRrjk[kaM 'kklu vkbZ , ,l fpfdRlk] LokLF;] ifjokj] vk;q"k izeq[k lfpo ,oa fpfdRlk f’k{kk 4&ch lqHkk"k jksM] nsgjknwu&248001 v0 'kk0 i=kad 178&izlfpLokid@2007 nsgjknwu% fnukad 12 tqykbZ] 2007 egksn;k] d`i;k vius i=kad&3408&08 fnukad 10 tqykbZ 2007 dk lanHkZ ysaA bl izdj.k esa vki }kjk lgh dk;Zokgh u djds ekeys dks vuko’;d #i ls ?kqek;k tk jgk gS ,oa voS/k fu;qfDr;ksa dks pkyw j[kk tk jgk gSA ;g fLFkfr lgha ugha gSA voS/k fu;qfDr;ksa dks ftruk tYnh [kRe dj fn;k tk; mruk gh lgh jgsxkA igys Hkh vkidk ekxZ n’kZu fd;k x;k Fkk fd foHkkxk/;{k dh gSfl;r ls vius mRrjnkf;Roksa dks igpkus vkSj mldk lgh izdkj fuoZgu djsaA bl ekeys esa Lor% gh Li"V gS fd iz’uxr voS/k fu;qfDr;ka vLFkk;h ugha gS cfYd voS/k gSA vr% vkidk lq>ko fd mRrjk[kaM vLFkk;h ljdkjh lsod ¼lsok lekfIr½ fu;ekoyh&2003 ds vUrxZr lekIr dj fn;k tk;] izFker;% mfpr izrhr ugha gksrk gSA vr% U;k; foHkkx esa tkdj fopkj foe’kZ dj ,d lIrkg esa fuf’p;kRed dk;Zokgh djkoasaA bl izdj.k esa 'kklu Lrj ij lanfHkZr djusa dk dksbZ vkSfpR; ugha gS D;ksafd prqFkZ Js.kh ds dfeZ;ksa ds fu;qfDr vf/kdkjh 'kklu ugha gSA Hkonh;] g0&viBuh;@12&7&07 ¼fotsUnz iky½ izeq[k lfpo Mk0 iwtk Hkkj}kt funs'kd] vk;qosZfnd ,oa ;wukuh lsok;as mRrjk[kaM] nsgjknwuA Learned counsel for the petitioners drew my attention to another letter written by the Director, Ayurvedic and Unani Services, Dehradun, Uttarakhand on 20.08.2007 in which the Director Ayurvedic and Unani Services, Dehradun, Uttarakhand asked all the District Ayurvedic and 5 Unani Officers of the State as to why the services of the absorbed/adjusted part time sewak/sweepers were terminated whereas the District Ayurvedic Unani Officers were asked to terminate illegal appointments only. By this letter the Director Ayurvedic and Unani Services, Dehradun, Uttarakhand informed all the District Ayurvedic and Unani Officers that they are the appointing authority of class-IV employees and directed them to take necessary action and inform the Directorate at once. Letter dated 20.08.2007 is being quoted below:- izs"kd funs’kd vk;qosZfnd ,oa ;wukuh lsok,a mRrjk[kaM lsok esa leLr ftyk vk;qosZfnd ,oa ;wukuh vf/kdkjh mRrjk[kaM nsgjknwuA la[;k%&5988@th&107@2007&08@fnukad%&20 vxLr 2007 fo"k;%& voS/k fu;qfDr ds laca/k esaA egksn; mi;ZDr fo"k;d fuosnu gS fd fu"dkflr prqFkZ Js.kh la?k"kZ lfefr vk;qosZfnd ,oa ;wukuh foHkkx mRrjk[kaM us vius i= fnukad 'kqU; ds }kjk laKku esa yk;k x;k gS fd 'kklu }kjk le;&le; ij prqFkZ Js.kh deZpkfj;ksa ds Lohd`r in ftuesa 'kklu }kjk funsZf’kr fd;k x;k gS fd prqFkZ Js.kh deZpkfj;ksa ds inksa dks foHkkx esa iwoZ ls dk;Zjr va’kdkfyd lsod@LoPNd ls vFkok ljIyl dkfeZdks ls lqlaxr fu;ekoyh ds izkfo/kku ds vUrxZr Hkjs tk;sxsa ds dze esa lek;ksftr dkfeZdksa ls lqlaxr fu;ekoyh ds izkfo/kku ds vUrxZr Hkjs tk;sxsa ds dze esa lek;ksftr dkfeZdks dh lsokvksa dks Hkh lekIr dj fn;k x;k gSA tcfd vkidks ek= voS/k fu;qfDr;ksa dks lekIr djus ds funsZ’k iznku fd;s x;s FksA fQj vkids }kjk mDr fu;eksa ds vUrxZr fu;qDr dkfeZdks dks lsok ls fdl vk/kkj ij i`Fkd dj fn;k x;k gSA pwafd prqFkZ Jas.kh deZpkfj;ksa ds fu;qfDr vf/kdkjh vki gS vr% vkidksa funsZf’kr fd;k tkrk gS fd 'kklukns’kks ds vUrxZr lqlaxr fu;ekoyh ds izkfo/kku ds vUrxZr Hkjs x;s inksa ds lEcU/k esa vius Lrj ls vko’;d dk;Zokgh djrs gq, funs’kky; dks rRdky voxr djkuk lqfuf’pr djsaA Hkonh; ¼Mk0 iwtk Hkkj}kt½ funs’kd 6 Learned counsel for the petitioners argued that when in pursuance of letter of the Principal Secretary, Medical Health the Director Ayurvedic and Unani issued a direction to all the District Ayurvedic and Unani Officers for cancelling the illegal appointment of Class-IV employee, the District Ayurvedic and Unani Officer virtually surrendered their discretion and issued termination orders in a mechanical manner. According to learned counsel for the petitioners, the District Ayurvedic and Unani Officer did not apply his mind in the matter and assumed that all appointment of the absorption/adjustment were to be terminated in pursuance of the letter dated 23.07.2007 written by the Director Ayurvedic and Unani, Dehradun, Uttarakhand. They further argued that in fact order of termination was passed by the District Ayurvedic and Unani Officers in compelling circumstances without application of mind. Learned counsel for the petitioners further submitted that after the adjustment/absorption the services of the petitioners could not be terminated without providing them opportunity of hearing as after absorption/adjustment the petitioners gained substantive right. Learned counsel for the petitioners also argued that in fact the Principal Secretary as well as the Director, Ayurvedic and Unani had no jurisdiction to issue any direction to the District Ayurvedic and Unani Officers for cancelling the appointment of the petitioners as they were not the appointing authority and District Ayurvedic and Unani Officers being the appointing authority, alone were empowered to do so, that too, if the circumstances so required. Learned Standing Counsel appearing for the respondents submitted that the petitioners were not absorbed/adjusted after adopting due selection process and when it was found that the absorption/adjustment was made 7 illegally, their services were terminated. On the question of opportunity of hearing, the learned counsel for the respondents argued that since the appointment of the petitioners were illegal from inception, no show cause notice was required. Learned counsel for the respondents further submitted that the preliminary inquiry committee was constituted which found the appointment as illegal but this fact was denied by the petitioners in their rejoinder arguments and they submitted that at no point of time there was any inquiry nor the petitioners were ever called upon to participate in the inquiry, hence the alleged inquiry is a sham one and cannot be made basis for termination of petitioners’ services. According to learned counsel for the petitioners the said inquiry was made in respect of the officers who were allegedly involved in the process for the absorption of the petitioners and other candidates and preliminary enquiry cannot be made the basis for terminating the services of the petitioner, as the preliminary enquiry, at the best, is for prima-facie satisfaction only. After hearing learned counsel for the parties and after going through the entire material available on record of this petition as well as the other connected writ petitions, this Court finds that the absorption/adjustment/regularization of the petitioners against the vacant posts was made on the basis of due recommendations of the selection committee. This Court is satisfied with the argument of learned counsel for the petitioners that the termination order was passed by the District Ayurvedic and Unani Officers in mechanical manner and by surrendering their discretion by treating the letters of the Principal Secretary, Medical Health and Director, Ayurvedic and Unani as binding direction and by 8 assuming that the same were issued for cancelling the appointment of the petitioners also. This Court finds that all termination orders were previously typed and only names of different class-IV employees were filled by hand. Thus, it is clear that before passing termination orders the different District Ayurvedic and Unani Officers did not apply their mind and surrendered their discretion on the dictates of the higher authorities i.e. the Principal Secretary, Medical Health and Director, Ayurvedic and Unani who were having no jurisdiction to issue the said direction and the said direction is evident from the letters dated 12.07.2007 and 20.08.2007 (Supra). It is also an admitted fact that before passing termination orders, no opportunity of hearing was provided to the petitioners and their services were terminated suddenly. Since the petitioners were absorbed/adjusted/ regularized in service against sanctioned vacant posts after reference to selection committee, the only course open before the respondents was to adhere to the mandate of 311(2) of the Constitution of India, if the same was required, at all. Thus, orders passed by the respondents are patently illegal and deserve to be quashed. Consequently, the writ petition is allowed and the orders dated 27.07.2007 passed by the District Ayurvedic and Unani Officer, Dehradun are quashed. No order as to costs. (V.K. Bist, J.) NCM 26.11.2009