HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1636 (SS) of 2007 Smt. Meena and another. …Petitioners Versus State of Uttarakhand and others …Respondents Mr. Subhash Upadhyay, Mr. Paresh Tripathi, Mr. Rakesh Thapliyal, Mr. M.K. Ray, and Mr. K.K. Tewari, 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 04.08.2007 passed by District, Ayurvedic and Unani Services Officer, Pithoragarh by which the services of the petitioners were terminated. Brief facts of the case are that the State Government vide order no. 1427/XXVIII (1)-2005-61/2005 dated 22.08.2005 sanctioned 13 temporary Class-IV posts 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:- “mDr in/kkjdksa dks osru ds vfrfjDr 'kk l u }kjk l e;& l e; i j fuxZr 'kk l ukns’kks ds vuq l kj eagxkbZ HkRr o vU; HkRrs ns ; gksxsaA prqFkZ Js .kh deZpkfj ; ksa ds in foHkkx esa i woZ l s dk; Z jr v’kadkfyd l sod@LoPNd l s vFkok l jIy l dkfeZdks l s l q l axr fu ; ekoyh ds i zkfo/kkuksa ds vuq l kj Hkjs t k ; sxsaA” 2 Initially the petitioners were engaged as part time sweeper/sewak under Regional Ayurvedic and Unani Officer Pithoragarh and in pursuance of the aforesaid Government Orders dated 22.08.2005, 30.07.2003 and 30.05.2003 the petitioners were absorbed/adjusted/appointed by the respondents in the department in the 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 a sudden the termination orders were passed on 04.08.2007 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 04.08.2007 are being quoted below:- Letter dated 23.07.2007 written by the Director:- i zs"kd] funs’kd] vk; qosZfnd , oa ; wukuh l sok ; sa mRrj k[ kaM nsgkjknwu l sok esa] f t yk vk; qosZfnd , oa ; wukuh vf/kdkjh mRrj dk’kh] fVgjh] nsgjknwu] vYeksM+k] f i FkkSjkx<+A l a [ ; k& t h 187@2002@vf/k0@3814&3819 fnukad 23&7&2007 fo"k ;& prqFkZ Js .kh ds i nksa i j dh x; h voS/k fu; qfDr ; ksA ds l aca/k esaA egksn ; ] mi jksDr fo"k ; d 'kk l u ds v/kZ’kk l dh; i= l a [ ; k 178@ i z l fpLoki d@2007 nsgjknwu fnukad 12&7&2007 l s i zkIr funsZ’kksa ds dze es l wfpr djuk gS fd vk i ds f t yUkrxZr prqFkZ Js .kh ds i nks i j dh x; h voS/k fu; qfDr ; ksa dk rRdky fcuk fd l h foyEc ds l ekIr djr s gq ; s d` r dk; Zokgh l s funs’kky ; dks voxr djkuk l qfuf’pr djssaA Hkonh; 3 Order dated 04.08.2007:- dk; kZy ; g0&v i Buh; ¼Mk0 i w t k Hkkj} k t ½ funs’kd f t yk vk; qosZfnd , oa ; wukuh vf/kdkjh f i FkkSjkx<+ l a [ ; k% LFkk&5@2007&08@619@fnukad 4@8@07 vkns’k 'kk l u ds v ) Z 'kk l dh; i= l a [ ; k 178@ i z l fpLoki d@2007 fnukad 12&07&2007 rFkk fun’s kd vk ; qosZfnd , oa ; wukuh l sok ; sa] mRrj k[ kaM] nsgjknwu ds i= l a [ ; k t h&187@2002@vf/k0@3814&3819 fnukad 23&07&2007 , oa i= l a [ ; k&5410 10 ,&06@2002 fnukad 04 t q ykbZ 2007 ds vuqikyu esa Jherh ehuk vuq l sod@LoPNd jk0vk0fp0& i h i yh l Ec ) f t yk efgyk fp0 f i FkkSjkx<+ f t yk f i FkkSjkx<+ dh fu; qfDr rRdky iHz kko l s l ekIr dh t krh gSA Jherh ehuk LofPNdk }kjk fpfdR l kf/kdkjh@ i zHkkjh QkekZf l LV] jk0vk0fp0& i h i yh l Ec ) f t 0e0fp0 f i FkkS jkx<+@fi FkkSjkx<+ l a [ ; k LFkk&5@2007&08@ yfkt vk ; qosZfnd , oa ; wukuh vf/kdkjh f i FkkSjkx<+ i zfrfyf i%& fuEufyf[ kr dks l wpukFkZ , oa vko’ ; d dk; Zokgh gsrq i zsf"krA 1 funs’kd vk ; qosZfnd , oa ; wukuh los k ; sa] mRrj k [ kaM] nsgjknwu dks muds mi jks Dr i =ksa dh vuq i kyu l wpukA 2 fpfdR l kf/kdkjh@ i zHkkjh QkekZf l LV f t yk efgyk fpfdR l ky ; ] f i FkkSjkx<+@f i FkkSjkx<+ dks b l funsZ’k ds dks mDr vkns’k gLrxr djkrs gq , mUgSa l kFk fd Jherh ehuk l sok l s i nP ; q r dj vuqikyu vk[ ; k rRdky O ; fDrxr : i l s mifLFkr gksdj dk; kZy ; esa gLrxr djk; saA 3 ys [ kk l gk; d dk; kZy ; A 4 ofj"B dks"kkf/kdkjh]f i FkkSjkx<+A 5 l EcfU/kr dh O ; fDrxr i=koyhA 6 xkMZ QkbZyA f t yk vk; qosZfnd , oa ; wukuh vf/kdkjh f i FkkSjkx<+ 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 fpfdR l k] LokLF;] i fjokj] vk; q"k 4 i zeq [ k l fpo , oa fpfdR l k f’k{kk 4&ch l qHkk"k jksM] nsgjknwu&248001 v0 'kk0 i =kad 178& i z l fpLoki d@2007 nsgjknwu% fnukad 12 t q ykbZ] 2007 egksn ; k] d` i; k v i us i =kad&3408&08 fnukad 10 t q ykbZ 2007 dk l anHkZ ysaA b l i z dj. k esa vki }kjk l gh dk; Zokgh u djds ekeys dks vuko’ ; d # i l s ?kqek ; k t k jgk gS , oa voS/k fu; qfDr ; ksa dks pkyw j [ kk t k jgk gSA ; g fLFkfr l gha ugha gSA voS/k fu; qfDr ; ksa dks f t ruk t Ynh [ kRe dj fn; k t k ; mruk gh l gh jgsxkA igys Hkh vki dk ekxZ n’kZu fd ; k x; k Fkk fd foHkkxk/ ; {k dh gSf l ; r l s v i us mRrj nkf; Roksa dks igpkus vkSj m l dk l gh i z dkj fuoZgu djsaA b l ekeys esa Lor% gh Li"V gS fd i z ’uxr voS/k fu; qfDr ; ka vLFkk; h ugha gS cfYd voS/k gSA vr% vki dk l q>ko fd mRrj k[ kaM vLFkk ; h l jdkjh l sod ¼ l sok l ekfIr½ fu ; ekoyh&2003 ds vUrxZr l ekIr dj fn; k t k ; ] i zFker ; % mfpr i z rhr ugha gksrk gSA vr% U ; k ; foHkkx esa t kdj fopkj foe’kZ dj , d l Irkg esa fuf’p; kRed dk; Zokgh djkoasaA b l i z dj. k esa 'kk l u Lrj i j l anfHkZr djusa dk dksbZ vkSfpR ; ugha gS D; ksafd prqFkZ Js .hk vf/kdkjh 'kk l u ugha gSA ds dfeZ; ksa ds fu; qfDr Hkonh ;] Mk0 i w t k Hkkj} k t funs'kd] vk; qosZfnd , oa ; wukuh l sok ; as mRrj k[ kaM] nsgjknwuA g0&v i Buh;@12&7&07 ¼fo t sUnz i ky½ i zeq [ 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, 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 appointing authority of class-IV 5 employees and directed them to take necessary action and inform the Directorate at once. Letter dated 20.08.2007 is being quoted below:- i zs"kd l sok esa funs’kd vk; qosZfnd , oa ; wukuh l sok , a mRrj k[ kaM l eLr f t yk vk; qosZfnd , oa ; wukuh vf/kdkjh mRrj k [ kaM- l a [ ; k%&5988@ t h&107@2007&08@fnukad%&20 vxLr 2007 fo"k ;%& voS/k fu; qfDr ds l aca/k esaA egksn ; mi; ZDr fo"k ; d fuosnu gS fd fu"dkf l r prqFkZ Js .kh l a?k"kZ l fefr vk; qosZfnd , oa ; wukuh foHkkx mRrj k[ kaM us v i us i= fnukad 'kqU ; ds }kjk l aKku esa yk; k x; k gS fd 'kk l u }kjk l e;& l e; i j prqFkZ Js .kh deZpkfj ; ksa ds Lohd` r in f t uesa 'kk l u }kjk funsZf’kr fd ; k x; k gS fd prqFkZ Js .kh deZpkfj ; ksa ds i nksa dks foHkkx esa i woZ l s dk; Z jr va ’kdkfyd l sod@LoPNd l s vFkok l jIy l dkfeZdks l s l q l axr fu; ekoyh ds i zkfo/kku ds vUrxZr Hkjs t k; sxsa ds dze esa l ek; ksf t r dkfeZdksa l s l q l axr fu; ekoyh ds i zkfo/kku ds vUrxZr Hkjs t k ; sxsa ds dze esa l ek ;fks t r dkfeZdks dh l sokvksa dks Hkh l ekIr dj fn ; k x; k gSA t cfd vki dks ek= voS/k fu; qfDr ; ksa dks l ekIr djus ds funsZ’k i znku fd ; s x; s FksA fQj vki ds }kjk mDr fu; eksa ds vUrxZr fu; qDr dkfeZdks dks l sok l s fd l vk/kkj i j i `Fkd dj fn; k x; k gSA pwafd prqFkZ Ja s .kh deZpkfj ; ksa ds fu; q fDr vf/kdkjh vki gS vr% vki dksa funsZf’kr fd ; k t krk gS fd 'kk l ukns’kks ds vUrxZr l q l axr fu; ekoyh ds i zkfo/kku ds vUrxZr Hkjs x; s i nksa ds l EcU/k esa v i us Lrj l s vko’ ; d dk ; Zokgh djr s g,q voxr djkuk l qfuf’pr djsaA funs’kky ; dks rRdky Hkonh ; ¼Mk0 i w t k Hkkj} k t ½ funs’kd 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 6 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 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. 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 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 assuming that the same were issued for cancelling the appointment of the petitioners also. 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 8 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 04.08.2007 passed by the District Ayurvedic and Unani Officer, Pithoragarh are quashed. No order as to costs. NCM: (V.K. Bist, J.) 26.11.2009