IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Special Appeal No. 94 of 2004 Date of decision :- 11-8-2006 A.F.R. (Approved for reporting) Not approved for reporting Date :- 11-8-2006 Initials of Judge Note :- Bench Reader will attach this at the of the first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Special Appeal NO. 94 of 2004 Jagat Singh son of Sowan Singh,R/o village Purvi Bans Khera (Golapar), Tehsil Haldwani District Nainital. …… Appellant. Versus 1. The Director of Education (Secretary) U.P. at Allahabad. 2. The District Magistrate Dehradun. 3. The District Inspector of Schools, Dehradun. 4. The Principal Government Intermediate College, Quansi, district Dehradun. …… Respondents. Mr. Manoj Tiwari, learned counsel for the appellant. Learned Standing counsel for the respondents. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat, J. JUDGMENT Per:- Hon’ble J.C.S. Rawat, J. 1. This special Appeal under Chapter VIII rule 5 of the High Court Rules has been preferred against the judgment and order dated 02.07.2001 passed by the learned single Judge in Civil Writ Petition No.1691 of 2001 (S/S)- Ram Dhari Bharti and others Vs. The Director of Education (Secondary) U.P. at Allahabad and others whereby the learned single Judge dismissed the petition. 2. We have heard learned counsel for both the parties and perused the record. 3. It is admitted to the parties that a writ petition was filed before the learned single Judge for the following relief: (i) issue a suitable writ, order or direction in the nature of Certiorari calling for the record of the case and to quash the impugned orders dated 16/17.07.1998 and the order dated 31.08.1998 passed by the District Inspector of Schools, Dehradun and the Principal of Government Intermediate College, Quansi, district Dehradun respectively; (ii) issue a suitable writ, order or direction in the nature of mandamus commanding the respondents not to interefere in the peaceful functioning of the petitioners as Class IV employee in their respective Government Intermediate College situated within Uttarakhand Region and also further ensure arrears of salary and current salary to the petitioner in accordance with the law. (iii) Issue any suitable writ, order or direction in the nature as this Hon’ble Court may deem just and proper, in the facts and circumstances of the case and (iv) Award costs of the writ petition to the petitioner throughout. 4. The appellant was appointed to Group ‘D’ post of Peon on adhoc basis by the Principal, Government Higher Secorndary School, Quansi (Dehradun) vide order dated 11.01.1997. The services of the appellant were subsequently regularized in the scale of Rs. 750/- to Rs. 940/- by means of order dated 27.09.1997 passed by the District Inspector of Schools, Dehradun. Pursuant to the regularization order dated 27.09.1997 the appellant jointed duties as regular employee in the Government Higher Secontary School Quansi on 29.09.1997 and thereafter he was transferred by the D.I.O.S. on 12.12.1997 to the Government Higher Secondary School, Paundha. Thereafter he was transferred to other places. A complaint was made to the District Magistrate, Dehradun against the appointment of the appellant and thereafter the D.I.O.S., Dehradun cancelled the appointment of the appellant. 5. The petitioner pleaded in his petition that the cancellation order passed by the D.I.O.S. did not indicate the reason for cancellation of the appointment of the appellant and it was further pleaded that no opportunity of hearing, whatsoever, was given to the appellant at any stage while cancelling his appointment, as such, the order of cancellation of the appointment of the appellant was patently illegal and thus, can not be sustained in the eyes of law. The respondent had filed the counter affidavit in which they had stated that in the government orders it was clearly mentioned that prior to making any direct appointment on the post of Class ‘D’ category the names of legible candidates must be called from the Employment Exchange and it is also mentioned that without following the procedure none of the appointment would be made. It was further pleaded that in the present case the Principal had not adhered to the Government Orders issued in this behalf prior to making of the appointment of the appellant. His appointment was initially illegal and his appointment was made against the government orders, as such, no right had been conferred upon him for getting the regularization. His services could not have been regularized. 6. The learned Single Judge had held that the appointment of the appellant was made against the government orders. The appellant was illegally regularized, therefore, the appointment of the appellant was rightly cancelled by the D.I.O.S. Since the order of appointment as well as of the regularization of the appellant was void being against the government orders, therefore, it was nonest in the eyes of law and to rectify the same no opportunity was required to be given. The learned Single Judge further held that even if the opportunity would have been afforded to the appellant, the appellant could not have set out any case for the setting aside of the cancellation order as they could not deny successfully that the government orders were not followed in his appointment and regularization. The learned Single Judge dismissed the petition. 7. The learned counsel for the appellant contended that the learned Single Judge erred in holding that the adhoc appointment of the appellant was illegal and he was regularized dehros the government orders. He further contended that the learned Single Judge had also erred in holding that no opportunity was required to be given to the appellant before cancellation of his appointment & regularization. The learned counsel for the respondent refuted the contention. 8. It is admitted to the appellant that the D.I.O.S. had got the power of appointment in relation of class ‘D’ employees. The Principal had no power to appoint the class ‘D’ employee. In the case in hand the initial adhoc appointment had been made by the Principal of the college. It is also admitted that the regularization of the appellant was itself being dehors the government orders. The learned counsel for the appellant could not demonstrate us any Government Order. under which his regularization was made. The State of U.P. framed the rules with regard to the regularization of Group ‘D’ adhoc employees in the year 1979. Rule 4 of the U.P. Regularization of Ad Hoc Appointments Rules 1979 provides as under: “4. Regularization of ad hoc appointments.- (1) Any person who- (i) was directly appointment on ad hoc basis before January 1, 1977 and is continuing in service as such on the date of commencement of these rules; (ii) Possessed requisite qualifications prescribed for regular appointment at the time of ad hoc appointment; and (iii) has completed or as the case may be, after he has completed three years service as such, shall be considered for regular appointment in permanent or temporary vacancy, as may be available, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant rules or orders. (2) In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward classes and other categories shall be made in accordance with the orders of the Government in force at the time of recruitment. (3) For the purpose of Sub rule (1) the appointing authority shall constitute a selection committee. (4) The appointing authority shall prepare an eligibility list of the candidates, arranged in order of seniority, as determined from the date of order of appointment and if two or more persons are appointed together from the order in which their names are arranged in the said appointment order, the list shall be placed before the Selection Committee along with the character rolls and such other records of the candidates as may be considered necessary to assess their suitability. (5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub rule (4). (6) The Selection Committee shall prepare a list of the selected candidates, the names in the list being arranged in order or seniority, and forward it to the appointing authority” 9. Thereafter State of Uttaranchal also framed the rules in the year 2002 wherein under Rule 4 of The Uttaranchal Regularization of Ad-Hoc Appointments Rules, 2002 it has been provided as under: “4. Regularization of ad hoc appointments.- (1) Any person who- (i) was directly appointment on ad hoc basis before June 30, 1998 and is continuing the service on the date of commencement of these rules; (ii) Possessed requisite qualifications prescribed for regular appointment at the time of ad hoc appoint6ment; and (iii) Has completed or as the case may be, after he has completed three years service as such, shall be considered for regular appointment in permanent or temporary vacancy, as may be available, on the basis on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant rules or orders. (2) In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Backward classes and other categories shall be made in accordance with the orders of the Government in force at the time of recruitment. (3) For the purpose of Sub rule (1) the appointing authority shall constitute a Selection Committee. (4) The appointing authority shall prepare an eligibility list of the candidates arranged in order of seniority, as determined from the date of order of appointment and if two or more persons are appointed together from the order in which their names are arranged in the said appointment order, the list shall be placed before the Selection Committee along with the character rolls and such other records of the candidates as may be considered necessary to assess their suitability.” 10. Admittedly the appellant had been regularized on 27.09.1997 prior to the commencement of the Uttaranchal Regularization of Adhoc Appointments’ Rules. Admittedly the appellant was not even regularized under Uttaranchal Adhoc Rules,2002. Admittedly the appellant was appointed on 11.01.1997. Thus, U.P. Rules 1979 were not applicable in the case of appellant. The appellant had not been regularized under any of the rules framed by the State Governments. It is provided in the government orders dated 10th August, 1992 annexed with the counter affidavit that prior to making any direct appointment on the post of category ‘D’ the names of legible candidates must be called from the Employment Exchange and it is also mentioned that without following the procedure none of the appointment will be made in the government departments. The Government has also framed rules of Group ‘D’ Employees Service Rules, 1985. These rules were applicable at the time of the appointment of the appellant. The appellant had not appointed according to the procedure established in the said rules. It is admitted to learned counsel for the appellant that the name of the appellant was not called from the Employment Exchange and prior to the appointment the list of the candidates waiting for the appointment under Dying-in-Harness Rules had also not been exhausted. The appointment of the appellant was also made without even advertisement of post or without taking any prior permission for the superior authorities of the department. Thus, the intial appointment was made against the provisions of the Rules and Regulations and Government Orders, as such, the appointment of the appellant was itself void an initio. The appellant was regularized by the D.I.O.S. and he had no power to regularize the services of the appellant and the regularization was also made against the rules and orders of the government. Thus, such appointment of the appellant as well as the regularization was void ab initio and it does not confer any right to the appellant. The orders passed by the authorities with regard to the adhoc appointment as well as for the regularization were nonest in the eyes of law. If the orders were void ab initio the competent authority had rectified the same by cancelling the said other. 11. However, in S.L. Kapoor v. Jagmohan (supra) the Hon’ble Supreme Court has also observed as under:- “As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs.” 12. In M.C. Mehta v. Union of India 1999 (6) SCC 237, the Hon’ble Supreme Court has laid down that there can be a certain situation in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution. For example, where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. 13. In Aligarh Muslim University v. Mansoor Ali Khan AIR 2000 SC 2783 the Hon’ble Supreme Court considered the question whether on the facts of the case the employee can invoke the principle of natural justice and whether it is a case where, even if notice has been given, result would not have been different and whether it could be said that no prejudice was caused to him, if on the admitted or proved facts grant of an opportunity would not have made any difference. The Hon’ble Supreme Court referred to the decisions rendered in M.C. Mehta v. Union of India (supra), the exceptions laid down in S.L. Kapoor case (supra) and K.L. Tripathi v. State Bank of India AIR 1984 SC 273 wherein it has been laid down that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) has to be proved. The court has also placed reliance in the matter of State Bank of Patiala v. S.K. Sharma 1996 SCC (L&S) 717 and Rajendra Singh V. State of M.P. 1996(3) SCC 364 where the principle has been laid down that there must have been some real prejudice to the complainant. There is no such thing as merely technical infringement of natural justice. The Court has approved this principle and examined the case of the employee in that light. In Viveka Nand Sethi v. Chairman, J&K Bank Ltd 2005(5) SCC 337 the Hon’ble Supreme Court has held that the principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straight- jacket formula. The cannot be applied in a vaccum without reference to the relevant facts and circumstances of the case. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be and empty formality. Even the principle of estoppels will apply. 14. In the case of State of U.P. Vs. Neeraj Awasthi & others reported in 2006(1) SCC 667 the market committee of the Mandi Samiti made the appointments in- excess to the sanctioned strength. A resolution was passed by the Board proposing regularization of the services of those employees who had completed 1000 days of service. The Government issued the direction regarding the services of all such employees who had been irregularly appointed during the period from 1.4.1996 to 30.10.1997 be cancelled on last- come-first-go basis. Pursuant thereto or in furtherance of such directions issued by the State Government, the services of a large number of employees were terminated on or about 30.03.1999. Questioning the aforementioned directions of the State, an employee challenged the termination orders before the single bench of Allahabad High Court, who allowed the same holding that the termination order issued pursuant to the orders of the State Government was illegal. In similar writ petitions filed by other dismissed employees, the Division Bench of the High Court, Lucknow Bench had put its seal of approval to the order of the learned single Judge. A writ petition filed by other person, however, was dismissed by another Division Bench of the Allahabad High Court at Lucknow upholding the order of the State Government. The learned single Judge of the Allahabad High Court while allowing the writ petition had also held that the principle of natural justice had been ignored in terminating the services of such employees and, thus, the order of terminating the services of the writ petitioners were bad in law. When the matter came up before the Hon’ble Apex Court, it has been held that from the very inception the provisions of the Act and regulations framed thereunder had been given a complete to-by. The provisions of the Act specifically mandate that all appointments must be made in terms of the provisions of the Regulations. The Hon’ble Apex has further held that the Board and the Market Committee of the Mandi Samities were bound by the Act, Rules and Regulations framed thereunder in making the appointments Statutory provisions as also the constitutional requirements were required to be complied with. The appointments have been made in flagrant violation of the statutory provisions. The Hon’ble Apex Court has further held that the orders passed by the learned single judge allowing the writ petitions which had been upheld by the learned division bench of the court does not lay down the law correctly and the judgment and order passed by the division bench of Lucknow Bench of the Allahabad High Court by which the order of the State Government was upheld, laid down the law correctly while dealing with the principle of natural justice. The Hon’ble Apex Court has further held as under:- “47. If the employees are workmen within the purview of the U.P. Industrial Disputes Act, they are protected thereunder, Rules 42 and 43 of the U.P. Industrial Disputes Rules provide that before effecting any retrenchment in terms of the provisions of Section 6-N of the U.P. Industrial Disputes Act, the employees concerned would be entitled to a notice of one month or in lieu thereof pay for one month and 15 days’ wages for each completed year of service by way of compensation. If such a retrenchment is effected under the Industrial Disputes Act, the question of complying with the principles of natural justice would not arise. The principle of natural justice would be attracted only when the services of some persons are terminated by way of a punitive measure or thereby a stigma is attached. {See Suresh Chandra Verma (Dr) Vs. Chancellor, Nagpur University 1990(4) SCC 55, 1991 SCC (L&S) 194, Karnataka Public Service Commission Vs. B.M. Vijaya Shankar 1992(2) SCC 206, 1992 SCC (L&S) 362 and State of M.P. Vs. Shyama Parthhi 1996 (7) SCC} 48. In Vikeka Nand Sethi Vs. Chairman, J&K Bank Ltd. 2005(5) SCC 337 it was held that “The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppels will apply. {See Gurjeewan Garewal (Dr.) Vs. Dr. Sumitra Dash 2004(5) SCC 263}. The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case.” 49. The High Court, therefore, must be held to have erred in law in holding that the principles of natural justice were required to be complied with.” 15. In Nazira Begum Lashkar and others Vs State of Assam-( 2000)5 S.L.R. page 777, the appellants claimed to have been appointed as Assistant Teachers of different Primary schools in the State of Assam in the year 1990 but those appointments were cancelled by the State Government. The said appointments had been made though no posts were available and the appointments had been made not in accordance with the prescribed procedure. The order of cancellation had been assailed in the High Court by filing the writ petition. The Division Bench of the High Court sustained the order of the State Government and did not interfere with the order. In appeal, the Hon’ble Apex Court held that the Division Bench of the Gauhati High Court while hearing the petition issued a direction to the Government for holding an inquiry and submitting a report in view of the alleged gross mal-practices adopted in difference states. After the inquiry it was revealed that the said appointments had not been in accordance with the statutory rules and without any advertisements calling for applications. The Division Bench of the Gauhati High Court held that the initial appointment being dubious in nature the issuance of appointments letter will not confer any right on the appointees. The Apex Court had held as under:- “14. ……………………………while the matter was pending before the Division Bench, the Court was persuaded to appoint any Inquiry Committee, in view of the allegations of gross irregularities and illegalities committed in the matter of appointment of teachers indifferent primary schools in different Districts. The said Committee has gone into details and recorded findings that the provisions of the Recruitment Rules have not at all been followed. The High Court even has gone to the extent of recording a finding that there has been tampering of records and fabricating of documents. Since the appointments to the posts are governed by a set of statutory rules, and the prescribed procedure therein had not been followed and on the other hand appointments have been made indiscriminately, immediately after posts were allotted to different Districts at the behest of some unseen hands, such appointments would not confer any right on the appointee nor such appointee can claim even any equitable relief from any Court. That apart, the appointments stood annulled hardly after six months from the date of appointments and the appointees cannot claimed to be continuing for an unusual long period, so as to claim a humanitarian consideration in their case. The decisions cited by Mr. Parikh, in support of his contention, not only do not support his contention but on the other hand, appears to us to be against his contention. In Ashwani Kumar’s case, 1997(2) SCC 1 this Court in no uncertain terms held that as the appointments had been made illegally and contrary to all recognized recruitment procedures and were highly arbitrary, the same were not binding on the State of Bihar. This court further went on to hold in the aforesaid case that the initial appointments having been made contrary to the statutory rules, the continuance of such appointees must be held to be totally unauthorized and no right would accrue to the incumbent on that score. The Court had also held that it cannot be said that principles of natural justice were violated or full opportunity was not given to the employees concerned to have their say in the matter before their appointments were called and terminated. …………… …………………………” 16. The Hon’ble Apex Court in Pabitra Mohan Dash and others Vs State of Orissa and others- 2001 (1) S.L.R page 43 has observed as under: “It is not disputed that with effect from 29.5.1977 Regulation 17 in the Board of Secondary Education has been brought into force which makes it obligatory for every institution to have a Headmaster who must be a trained graduate and must have 7 years of teaching experience as a trained graduate teacher. If subsequent to 29.5.1977 any appointment has been made to the post of Head master contrary to the aforesaid provisions of the Regulation then the said appointment would be invalid appointment and would not confer any right on the appointee. The expression ‘approval’ used in the second direction in Golakh Chandra Mohanty’s case is referable to the approval contemplated under Rule 8(2)(b) of the Recruitment Rule and, therefore, if there has been an