2 HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1313 (SS) of 2007 Manoj Chandola and others. …Petitioners Versus State of Uttarakhand and others …Respondents Mr. Paresh Tripathi, Mr. Subhash Upadhyay, Mr. Rakesh Thapliyal, 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 13.08.2007 passed by District, Ayurvedic and Unani Officer, Bageshwar by which the services of the petitioners were terminated. Brief facts of the case are that the State Govt., in order to smooth functioning of the Government functions, issued a Circular on 26.06.2003 for the engagement of the persons already working in the establishment in this context the Govt. Order dated 30.03.2005 was issued for recruitment of the posts of Class IV employees in the State Ayurvedic Hospitals, by absorbing the Class IV employees working since before. The State Government issued another Govt. Order no. 702/XXV III (1)-2005-29/2005 dated 14.07.2005 by which it has sanctioned 16 temporary Class-IV posts in the State Ayurvedic Hospitals. In the said government order it was provided that newly created Class-IV posts shall be filled from already working part time sewak/sweeper or by surplus staff. Relevant portion of the Government order is being quoted below:- **prqFkZ Js.kh deZpkfj;ks ds in foHkkx esa iwoZ ls dk;Zjr v”kadkfyd lsod @ LoPNd ls vFkok ljIkyl dkfeZdks ls lqlaxr fu;ekoyh ds izkfo/kkuksa ds vuqlkj Hkjs tk;sxsaA** 3 Initially the petitioners were engaged as part time sweeper/sewak under Regional Ayurvedic and Unani Officer Bageshwar and in pursuance of the aforesaid Government Order dated 14.07.2005 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. It was also mentioned in the order that the services of the petitioners can be terminated by giving them one month’s notice in writing. 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 a sudden the termination orders were passed on 13.08.2007 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 13.08.2007 are being quoted below:- Letter dated 23.07.2007 written by the Director:- funs'kd vk;qosZfnd ,oa ;wukuh lsok; sa mRrj k[ kaM nsgjknwuA l sok esa ft yk vk; qosZfnd ,oa ;wukuh vf/kdkjh mRrjdk”kh] fVgjh] nsgjknwu] vYeksM-k] ckxs”oj] f i FkkSjkx<-A la[;k%& th 187@2002@vf/k0 3814-3819 fnukad 23&07&07 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;dh; i= la[;k 178@ izlfoLokid@2007 nsgjknwu fnukad 12&07&2007 esa izkIr funasZ”kks ds dze esa lwfpr djuk gS fd vkids ftykUrZxr prqFkZ Jzs.kh ds inksa ij dh x;h voS/k fu;qfDr;ks dks 4 dks rRdky fcuk fdlh foyEc ds lekIr djrs gq;s d`r dk;Zokgh ls funs”kky; dks voxr djkuk lqfuf”pr djsA Order dated 13.08.2007: dk;kZy; Hkonh; ¼Mk- iwtk Hkkj}kt ½ funs”kd ftyk vk;qosZfnd ,oa ;wukuh vf/kdkjh ckxs”ojA la[; k%- fu;qfDr&2005@2006@vf/k&5@2007&08@308 fnukad%13@8@07 Jh euks t pUnksyk prqFkZ deZpkjh jktdh; vk;qosZfnd fpfdRl ky; dk;kZy; ckxs”oj }kjk%& i zHkkjh fpfdR lkf/kdkjh@ QkekZf l LV jktdh; vk;qosZfnd fpfdR l ky; dk;kZy; ckxs”oj tuin&ckxs”ojA vkns”k ,rn}kjk vkidks voxr djk;k tkrk gS] fd o’kZ 2004@2005 es foHkkx esa prqFkZ Js.kh deZpkjh ds :Ik es fu;qDr fd;s x;s FksA foHkkx }kjk fofHkUu tuinks ds fujh{k.k djus ds mijkUr funs”kd vk;qosZfnd ,ao ;wukuh lsok,s mRrjk[k.k nsgjknwu ds ikfjr vkns”k la[;k&th& 187@2002@ vf/k 3814&3819 fnukad 23-7-2007 ds dze esa vkidh fu;qfDr lekIRk djus lEcfU/k vkns”k izkIr gq, gSA vr% mi jksDr vkns”k ds ifjikyu esa vkt fnukad 13&8&2007 ds v i jkUg l s vki dh fu;qfDr lekIr dh tkrh gS] rFkk vki vius dks bl vkns”k ds fuxZr gksus dh frfFk ls dk;ZeqDr le>saA ¼Mk l h ,e cM+Foky½ f tyk vk;qosZfnd ,oa ;wukuh vf/kdkjh ckxs”oj la [;k ,oa fnukad& rnSo izfrfyfi funs”kd vk;qosZfnd ,oa ;qukuh lsok, a nsgjknwu dks muds vkns”k la[;k th&187@2002@vf/k 3814&3819 fnukad 23&7&07 ds dze esa d`r dk;Zokgh ls lwpukFkZA 2& izHkkjh fpfdRlkf/kdkjh@ izHkkjh QkekZflLV vkidks funsZf”kr fd;k tkrk gS] fd vki vius v/khuLFk deZpkfj;ksa dks dk;ZHkkj eDqr djsa dk;ZHkkj eqDr izek.k i= ,oa vns~;rk izek.kk i= bl dk;Zjr dk;;Zy; dks izf’kr djasA ¼Mk l h ,e cM+Foky½ ftyk vk;qosZfnd ,oa ;wukuh vf/kdkjh ckxs”oj 5 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:- fo t sUnz i ky mRrj k[ kaM 'kk l u vkbZ , ,l fpfdRl k] LokLF;] i fjokj] vk; q"k izeq[k lfpo ,oa fpfdRlk f”k{kk 4&ch l qHkk"k jksM] nsgjknwu&248001 v0 'kk0 i =kad 178& izlfpLoi d@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 s ?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 gSf l;r ls vius mRrjnkf;Roksa dks igpkus vkSj mldk lgh iz dkj 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% vki dk lq>ko fd mRrjk[kaM vLFkk ; h l jdkjh l sod ¼ l sok l ekfIr½ fu;ekoyh&2003 ds vUrxrZ lekIr dj fn;k tk;] izFker;% mfpr izfrr ugh gksrk gSA vr% U;k;foHkkx es tkdj fopkj foe”kZ dj ,d lIrkg esa fuf”p;kred dk;Zokgh djkosaA bl izdj.k es “kklu Lrj ij lanfHkZr djus dk dksbZ vkSfpR; ugha gS D;ksfd prqFkZ Js.kh ds dkfeZdks ds fu;qfDr vf/kdkjh “kklu ugh gSA Mk0 iwt k Hkkj} k t funs'kd] vk; qosZfnd ,oa ; wukuh lsok;s mRrjk[kaM] nsgjknwuA Hkonh ;] g0&v i Buh;@12&7&07 ¼fo t sUnz i ky½ izeq [ k l fpo 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, 6 Dehradun, Uttarakhand asked all the District Ayurvedic and 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:- isz’kd funs”kd vk;qosfnd ,ao ;wukuh lsok, mRrjk[kaM lsok esa leLRk ftyk vk;qosZfnd ,oa ;wukuh vf/kdkjh mRrjk[kaM ckxs”oj 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 iwqoZ ls dk;Zjr va”kkdkfyd lsod&LoPNd ls vFkok ljIyl dkfeZdksa ls lqlaxr fu;ekoyh ds izkfo/kku ds vUrxZr Hksj tk;saxsa ds dze esa lek;ksftr dkfeZdksa ls lqlaxr fu;ekoyh ds izkfo/kku ds vUrxZr Hksj tk;sxsa ds dze esa lek;ksftr dkfeZdksa 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;keksa ds vUrxZr fu;qDr dkfeZdksa dks lsok ls fdl vk/kkj ij i`Fkd dj fn;k x;k gSA pwafd prqFkZ Jsa.kh deZpkfj;ksa ds fu;qfDr vf/kdkjh vki gS vr% vkidksa funsZf”kr fd;k tkrk gS fd “kklukns”k ds vUrxZr lqlaxr f;ekoyh ds izkfo/kku ds vUrxZr Hkjs x;s inks ads lEcU/k esa vius Lrj ls vko”;d dk;Zokgh djrs gq, funs”kky; dks rRdky voxr djkuk lqfuf”pr djsaA Hkonh; Mk0 iwtk Hkkj}kt funs”kd 7 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 8 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 9 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 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 13.08.2007 passed by the District Ayurvedic and Unani Officer, Bageshwar are quashed. No order as to costs. (V.K. Bist, J.) NCM 26.11.2009