^^/^r IN Tf-iE.STATE ADMIN .P. iJ&BALPUR O.A.^o. <2,~7-S PETITIO R ; APPLICANT. Sura4 Pcakash Ghouhan, s/o Shri M.L. Chouhan, aged abqut 27 years, Laboratory AdSSS&a (Prayog Shsla Paricharak)» Government Degree Oollege Sarigarb, district Raigarh»M.P. VERSUS SESF01-IDENTS S N6N-&PPLICANTS 1. State of M.P., through th6 Secretary, Higher Sducation (Uchcha Shiksha) Bhopal, 2. Tba Principal, Sovernment Degree College Sarangarh, dietrict - •Raigarh,M.P. DiSTAILS O? AFPLICATION! 1k APPLICANT RESPONDENTS NON-APPLICANTS HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.364/2005 Suraj Prakash Chouhan Versus State of Madhya Pradesh and another Sinale Bench: Hon'ble Shri Wlanindra Mohan Shrivaslaya, J^ FOR PRONOUNCMENT OF ORDER Sd/- ^anindra MoAan Judge Sjirivastavai •',}y HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.364/2005 Suraj Prakash Chouhan Versus State of Madhya Pradesh and another NON-APPLICANTS Sinale Bench: Hon'ble Shri IVSanindra IVIohan Shrivastava. J. Shri Dhaniram Patel, counse! for the petitioner. Shri Ajay Dwivedi, Deputy Govt. impugned order has terminated ioner wss not (Passed on this ^®^davof January, 2010) By the instant petition, the petitioner has challenged the dated 16-11-1990 (Annexure A-3) by which second responden petitioner from sen/ice holding that the appointment of the accordance with the rules. (2) Relevant facts, as adumbrated in the petition, are that the petitioner was qualified for appointment to the Post of Laboratory AttendanS, and his name was also registered with Employment Exchange, Raigarh, District Raigarh. Second respondent-Principal, Govt. Degree Co!!ege, Sarangarh, requisitioned the namss of eligibie candidates through Employment Exchange, Raigarh for appointment ;:o the post of Laboratory AUendant En the College. It is stated that names and other detaiis of 50 candidates were forwarded by the Empioyment Exchange to the second respondent. Thereafter, the candidates were calied for interview inciudiriy the petitioner who was issued interview card (Annexure A-1). The petitionei' <r'as directed to appear before the seiection committee on 11-06-1990 at 11 A.M. Interview card dlscloses that the selection comprised of written exaraination ••^^,^^^ -1. .-^? / '7 fbllowed by inten/iew. It is further stated that the petitioner participated in th® process of selection along with 40 candidates, who were subjected to writte;-. examination. Those who succeeded in the written examination inciuding the petitioner were inten/iewed by the Seiection Committee. It is the case of ths petitioner that he was du!y selected for the post of Laboratory Attendant and was appointed as Laboratory Attendant vide order dated 01-11-1990(Annexure A-2). The petitioner was directed to join his service in the pay scale of Rs.775-1200 with other ailowances. The appointment order contained as many as four conditions. It is further pleaded that the petitioner, pursuani to the order of appointment dated 01-11-1990, joined his service on 05-11-1990 under the second respondent and since then starting serving sincerely and faithfulsy. According to the petitioner, the entire process of selection was Segai & proper and he being qualified and found meritorious was selected and appointed to the pcst of Laboratory Attendant. The petitioner's grievancs is that after 15 days of his appointment when he joined and started his worlc, vide order dated 16-11-1990, his services were a!i of a sudden terminated by stating that the appointment of the petitioner was not In accordance with rules. (3) The petitioner has assailed the order of termination particuiariy on the ground that he was terminated from service by stating that the appointment was improper and not in accordance with rules and it has not been staSed in the ordsr as to why and in what manner the appointment was impropar or as to what irregularities were committed or what 'Mas the reason to conclude that his> appointment was not in accordance with rules. The petitioner further stated that the order of termination was in vioiation of princip!e of natural justice, and is therefore. illegal, arbrtrary and whimsical. It is categoric assertion of the peSiiion that as appointment was iegal and proper and al! procedure were a.dopfc tiiioner joDted ^ssW^ 3 r^ according to the rules, his right of Hvelihood could not be infringsd in the arbitrary manner, it has been done. Learned counse] for the petitioner, in order te substantiate his contention based on violation of principles of naturai justice, has reiied upon judgment of various authorities viz. Shrawan Kumar Jha vs. State of Bihar, 1991 A!R S.C. 309, D. K. Yadav vs. J. M.A. Industries Limited, 1383 ^ f^ ^3,,Ur >CC 47S, Durgesh iecided by this Court Tiwary vs. Sido Sangathan vs. Sinha vs. State of Chhattisgarh & Others , (2008} 2 njay Shukla & Others vs. Municipal Corporation, Raipur & Others, CGLJ Vai.a (4) In the return fiied by the respondents, jt has been stated that ih& appointment of the petitioner was void ab-initio and therefore there was no smpediment under the law to cancei the same and in the pecui'iar circumstsnces of the case, no opportunity of hearing was necessary before issuance of cancellation of wrong order of appointment. it has been further stated that no notice or any other procedure are required to be followed. The ,'sspondents !-,a-/e stated that the then Principa'-G. P. Namdeo, who was transferred in the rnonth of June, snd instead of proceeding to join to new p!ace of postsng, he remained at Go'/t. Degree College, Sarangarh itself and continued as Principai without any rhyme or reason. The selection process was taken up by him in spite of his transfer order having been passed and at the time of interview examination held on 11-06-1990, Shri Namdeo participated as Principal of the College though he was under transfer orders. After issuance of the order of transfer, Shri Narndeo has no authority to ftjnction as Principal of the College and to participate in tiie process of seiection for appointment to the post of Laboratory Attsndant. He ^ 7 unauthorizedly participated in the process of selection. Thereafter, charge was handed over by him on 17-09-1990 to one Shri S.K. Yadav, who was only as Assistant Professor of the College. This act of handing over of charge was without any instruction of the government. The said Shri Yadav vi/as junior to cns Shri Jagdish Anand and Shri G. C. Gupta. Shri Namdeo had however preferred to pick up Shri Yadav for handing over charge. Thereafter, Shri Yadav had issued the appointment order. !t is submitted that because of the aforessid inherent defect in the process and consequent order of appointment itself, was liable to be cancelled as the process of selection was completely void ab-initio. (5) A perusa! of the impugned order (Annexure A-3) shows that the appointment order dated 01-11-1990 was cancelled by the second respondent stating that appolntment of the petitioner was not in accordance with ruies. It is not in dispute that the petitioner was appointed through the selection process wherein names of eligible candldaSes were invited from the Employment Exchange, District Raigarh. Thereafter, written examination fo!lowed by inten/lc!/!' vvas he!d and fhen the appointmenS order was issusd. Respondents have negatived the claim of the petitioner on the submission that the process oi' sefection was vitiated as the then Principal who participated in the process of selection was under transfer. As he was transferred in the month ofjune,1990 but he did not proceed to join at fhe new place of posting and continued in the same college and participated in the process of selectlon. Respondents asserticr, in their return are that after his relieving, outgoing Principai Shri Namdeo hsnded over the charge to one Shri Yadav, Assistant Professor, has not been controverted by the pstitioner by filing any rejoinder. (6) The facts which are not controverted leading to an admitted factual position on record are that though the petitioner was subjected to process of ^- v' y <^-7 seiection, the selection committee comprised of the then Principal who v.'as continued in the office, even though he was transferred in the month of June. It is also not in dispute that the order of appointment was issued by an Assistant Professor. (7) True it is that by the impugned order, sen/ices of the petitioner wers terminated by canceling his appointment order dated 01-11-1990, the quesSlon which arises for consideration is whether the petitioner is entltled to any relief snd whether the order of termination from service by canceiing the sariier order of appointment, is vitiated on account of vioiation of principles of natural justice on the ground that the same was passed without affording any opportunity o? (8) !t is well settled that before a person is subjectsd to an adverse actio.'i which involves civil consequences, it must proceed an opportunity of hearing as no one can be condemned unheard. This universal principal of general application however admits of few exceptions and one of them is where on admitted or indisputabie facts oniy one conclusion is possibte and it would be oniy an empty formality or where the conclusron is foregone and no other concSusion is possibie on an admitted facts, interference may not be warranted on!y on the ground that the order was passed without giving an opportunity of hearing. (9) In the case of StaSe of M.P. and others Vs. Shyama Pardhi and others, [199S5 7 Supreme Court Cases 118, appointment of the respondent was cancelled on the ground that even though she was nof possessed required qualification, she was wrongly seiected and sent for training but late,'- on hsr ser/ices were terminated as it was found that the selection was illegal. It createc -(o Y as an admitted position that the respondent vi/as not possessed of necessan quaiification. Challenge to the order of termination by canceiing the order of appointment on the ground that the same was done without any opportunity of hearing, and therefore, violative of principies of natural justice was negatived or, the ground that the initial selection itself was per se illegai, and therefore, iate. appointments were also in violation of statutory rules. 29, Hon'bte Supreme Court has (10) In the case of Aligarh Ali Khan, (2000) 7 Supreme applied the principle that where on the admitted or indisputable fscts or where only one view is possible, no relief could be granted only because opportunity of hearing was not afforded. (11) In the case of State of Manipur & others vs. Y. Tokan Singh & Others, 2007 AIR SCW 1995, the Hon'ble Apex Court has he!d that where the facEs ai-e admitted, principies of natural justice are not required to be applied, particuSariy, when the same would result in futiiity. Further relied upon the decision in the case of Kendriya Vidyalaya Sangathan and Others v. Ajay Kumar Das Others, (2002) 4 SCC 503, it was obsereed that if the appointment orders are a nuliity, the question of obsen/ance of principies of natural justice would not arlse. (12) What is discernibie from the aforesaid decisions of She Apex Court Is thst the principles of naturai justice are not unruly horse. The principie of natuia! justice is required So be appiied with, having regard to the fact situation evident therein. Thus, the principle of natural justice may not require to be rollowed jn case where the conclusion on admitted facts te foregone and no other conciusjon is possible. 7- ,-^ \, ••^-•" (13) !n the light of above principle with regard to applteation of principie of natura! justice, present case has to be examined. The present is a case based on admitted facts re!ating to validity of appointment of the petitioner. Whiie it has not been disputed that selection process was foltowed, it Is equaily admitted positlon on record that the concerned Principal who participated in the selec'don in his capacity as such and was a member of selectlon committee already stood transferred. Further the fact that the appointment order itseif was Issued not by the Principa! but by the Junior Assistant Professor to whom charge was handed over by the outgoing Principal Shri Namdeo. it is an admitted fact that the petltioner has not filed any rejoinder to controvert these facts stated in the return. This being the admitted position, it is clear that the Principa!, v/ho was under transfer, participated in various proceedings of selection and was rnember of the selection committee. Further that after selection process having been complsted while proceeding on transfer without any instructions, handed over the charge o? office to Junior Assistant Professor who proceeded to issue the order oi' appointment. On these admitted facts, it is apparent and fioating on the surface that not only the process of seiection was vitiated but aiso order of appointment was issued by an Assistant Professor who was not substantivety appointed to the post of Principa! and unable to exercise powers of appointing authority uniess specificaily conferred either under the statutory provision or by a valid administrative order. No other conclusion except that the order of appointment was non estcan be drawn. (14) Learned counsel for the petitioner in order to reinforce his submission that the order of termination is liable to be set aside only on the ground {hat It suffered from vio!ation of princip'e of natura! justice has retied upon certain decislons referred to in paras hereinabove. ff tSag'S3a ^! 1 jj !%. V<^?1 "f'ssssif -^ (15) In the case of Shrawan Kumar Jha (Supra), assertion of the respondents Sherein that the appointments were cancelled because the District Superintendent of Education have no authority to make the appointments were controverted by stating that the appointments were validly made and it was in thls baci^round in that particular case, the order of terminatlon was foum ta be vitiated on account of violation ofprincipte of natura! justice. in the present case, assertion of the respondents that the appointment were made illegally because the Principai who had participated in the process of seiection though •.incle'' transfer, did not proceed and illegally continued in the office and that the order of appointment was issued by the Junior Assistant Professor, are admitted. (16) In this view ofthe matter, reiies on the aforesaid decisions is misplaced as the same is distinguishabie on the facts of the case. Reliance placed in fhe case of D. K. Yadav (Supra) is also misplaced in as much as that was not a case of foregone conclusion on admitted facts. Reliance upon cases of Basudeo Tiwary, Nehru Yuva Kendra Sangathan and Mrityunjay Shukla (supra) are a!so misplaced for the reasons stated above. (17) In the resuit, ! am not inclined to interfere with the order of termination in exercise of extra-ordinary jurisdiction under the Article 226 of the Constitution of india. The petition has no merit and the same is therefore deserves to be and is accordingly dismissed. No order as to costs. • §^/. Manindra Mohan Shrivastava Judge