HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1223 (SS) of 2008 Harsh Mohan. …Petitioner 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 petitioner. 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 petitioner has challenged the order-dated 08.08.2007 passed by District, Ayurvedic and Unani Services Officer, Almora 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 petitioner 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 working 2 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 petitioner was engaged in Class IV post on part time basis under Regional Ayurvedic and Unani Officer Almora and in pursuance of the aforesaid Government Order dated 22.08.2005 the petitioner was absorbed/adjusted/appointed by the respondents in the department in pay scale of Rs. 2550-55-2660-3200. The said absorption/adjustment/ appointment of the petitioner was done against sanctioned vacant posts on the basis of the recommendation of duly constituted Selection Committee. Thereafter, the petitioner continued to work in the department but all of a sudden the termination order was issued on 08.08.2007 terminating the services of the petitioner. This termination order was 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 the petitioner dated 08.08.2007 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 nsgkjknwu 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;] 3 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 08.08.2007:- dk;kZy; ftyk vk;qosZfnd ,oa ;wukuh vf/kdkjh vYeksM+k la[;k% 772 vf/k&5@2007&08 fnukad 8 vxLr] 2007 '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 ,oa i= la[;k&01,&06@2002 5409 fnukad 04 vxLr 2007 ds vuqikyu esa Jh g"kZ eksgu] jkt- vk;q- fpfd- Vkuk ftyk vYeksM+k dh fu;qfDr rRdky izHkko ls lekIr dh tkrh gSA Jh g"kZeksgu }kjk fpfdRlkf/kdkjh@QkekZflLV jkt- vk;q- fpfd- Vkuk vYeksM+kA ftyk vk;qosZfnd ,oa ;wukuh vf/kdkjh vYeksMk la[;k &p-Js-fu;qfDr@vf/k&5@2007&08 fnukad%%2007 izfrfyfi%&fuEufyf[kr dks lwpukFkZ ,oa vko’;d dk;Zokgh gsrq izsf"krA 1 funs’kd] vk;qosZfnd ,oa ;wukuh lsok;sa] mRrjk[kaM] nsgjknwu dks muds mijksDr i=ksa dh vuqikyu lwpukA 2 fpfdRlkf/kdkjh@izHkkjh QkekZflLV] jktdh; vk;qosZfnd fpfdRlky;] Vkuk dks bl funsZ’k ds lkFk fd g"kZ eksgu dks mDr vkns’k dh izfr gLrxr djkrs gq, mUgSa lsok ls inP;qr dj vuqikyu vk[;k rRdky O;fDrxr :i ls mifLFkr gksdj dk;kZy; esa gLrxr djk;saA 3 ys[kk lgk;d dk;kZy;A 4 ofj"B dks"kkf/kdkjh] vYeksM+kA 5 O;fDrxr i=koyh@vfHkys[kA ftyk vk;qosZfnd ,oa ;wukuh vf/kdkjh vYeksM+kA 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:- 4 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 petitioner 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 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, 5 Uttarakhand informed all the District Ayurvedic and Unani Officers that they are 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 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 Learned counsel for the petitioner 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 6 District Ayurvedic and Unani Officer virtually surrendered his discretion and issued termination order in a mechanical manner. According to learned counsel for the petitioner, 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 Officer in compelling circumstances without application of mind. Learned counsel for the petitioner further submitted that after the adjustment/absorption, the services of the petitioner could not be terminated without providing him opportunity of hearing as after absorption/adjustment the petitioner gained substantive right. Learned counsel for the petitioner 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 Officer for cancelling the appointment of the petitioner as they were not the appointing authority and District Ayurvedic and Unani Officer 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 petitioner was not absorbed/adjusted after adopting due selection process and when it was found that the absorption/adjustment was made illegally, his services were terminated. On the question of opportunity of hearing, the learned counsel for the respondents argued that since the appointment of the petitioner was illegal from inception, no show cause notice was required. 7 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 learned counsel for the petitioner in their rejoinder arguments and they submitted that at no point of time there was any inquiry nor the petitioner was 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 petitioner the said inquiry was made in respect of the officers who were allegedly involved in the process for the absorption of the petitioner 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 petitioner 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 petitioner that the termination order was passed by the District Ayurvedic and Unani Officer in mechanical manner and by surrendering his discretion by treating the letters of the Principal Secretary, Medical Health and Director, Ayurvedic and Unani as binding direction and by assuming that the same were issued for cancelling the appointment of the petitioner also. Thus, it is clear that before passing termination order the District Ayurvedic and Unani Officer did not apply his mind and surrendered his discretion on the dictates of the higher authorities i.e. the Principal Secretary, 8 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 order, no opportunity of hearing was provided to the petitioner and his services were terminated suddenly. Since the petitioner was 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, order passed by the respondents is patently illegal and deserve to be quashed. Consequently, the writ petition is allowed and the order dated 08.08.2007 passed by the District Ayurvedic and Unani Officer, Almora is quashed. No order as to costs. (V.K. Bist, J.) 26.11.2009 NCM: