Case: Mazharul Islam Hashmi Vs. State of Uttar Pradesh and Another

to secure a reasonable uniformity in the standard to be applied by the Divisional Committee in making the selection. The Government reiterated its declared policy that all such officers and servants, whose services were proposed to be determined on the ground of unsuitability, be given an opportunity of personal interview by the Committee and the official concerned should be given a chance to clerk up his position with reference to any adverse entries appearing in his service record. It was also desired by the Government that only those adverse remarks may be considered against the official concerned which were found to have been only communicated to him.15. The appellants case, as laid before the High Court was that he had become finally absorbed in the Palika Centralised Services by the operation of the legal fiction contained in Rule 6(2)(iii). But on September 6, 1967 an order of the State Government dated August 26, 1967 was served upon him, intimating that his services had been terminated under the U. P. Palika (Centralised) Rules.16. The appellants further contention here as there is that this order terminating his services, was passed without giving him an opportunity to explain his position, or without giving him any show cause notice, whatever.17. It was mainly on this ground that the appellant impugned the Government Order dated August 18, 1967, terminating his service, in the writ petition under Article 226 of the Constitution, filed in the High Court.18. Several other employees, similarly situated, had filed writ petitions in the High Court to challenge the orders whereby their services were terminated. The learned single Judge, who tried these petitions, dismissed them by a common judgment, dated March 27, 1968.19. The appellant and other writ petitioners preferred special appeals in the High Court. Those appeals were dismissed by a Division Bench of the High Court, by an order dated May 12, 1969.20. Two of those writ petitioner, namely Mohamad Rashid Ahmed and Ashfaq Hussain filed Civil Appeal 1724 of 1969 and Civil Appeal 1732 of 1971 after obtaining special leave of this Court. Those appeals have been disposed of by a common judgment dated December 15, 1978 by this Court (Mohd. Rashid Ahmad v. State of U. P., (1979) 1 SCC 596 : 1979 SCC (L & S) 82). One of us (Sarkaria, J.) was a party to that judgment. The appeal of Mohamad Rashid Ahmed was allowed by this Court on the ground that no opportunity was afforded to him, before the State Government passed the impugned order dated July 18, 1967 terminating his services.21. The appellant before us also impugnes the termination of his services precisely on the same ground.22. Mr. Dixit, who appears for the respondents States does not dispute the appellants allegation that no opportunity or notice was given to him to show cause against the contemplated termination of his services. But, it is submitted by him that the appeal has become infructuous because the appellant had superannuated long ago. In this connection, he has pointed out that when the impugned order dated August 28, 1967 was passed, the appellant, according to his own allegation was about 56 years old. He, therefore, must have attained the age of superannuation in August 1971. On the other hand it is submitted that the appellant has been continued in service first under the stay order issued by the High Court and after the filing of the petition for special leave in this Court, under an injunction issued by this Court.23. As against this, learned counsel for the appellant points out that the interim order restraining the respondent from discontinuing his services initially passed by this court was vacated on December 9, 1969 and in consequence, the appellant has not been continuing in services thereafter. If age of superannuation under the Rules is 60 years, as has been asserted by the learned counsel for the appellant, then it means that the appellants services were prematurely discontinued at a time when he had several months to serve before attaining the age of superannuation. In this view of the matter the appeal cannot be said to be infructuous.24. The ratio of Mohd. Rashid Ahmed (Mohd. Rashid Ahmad v. State of U. P., (1979) 1 SCC 596 : 1979 SCC (L & S) 82) case therefore, squarely covers the case of the appellant.25. It was observed in that case that it is fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. The main requirements of a fair hearing, as pointed out by this Court earlier, are : (i) A person must know the case that he is to meet; and (ii) he must have an adequate opportunity of meeting that case. These rules of natural justice, however, operate in voids of a statute. Their application can be expressly or implicitly excluded by the legislature. But, such is not the case here. On the contrary, the two circulars issued by the State Government, to which a reference has been made earlier, expressly imported these principles of natural justice and required that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability, they must be given an opportunity of personal hearing by the Committee. The whole purpose of the personal interview was that, when it was proposed to declare an official unsuitable for absorption, the Committee had to afford him an opportunity to appear before it and clear up his position. Since it is nobodys case that such an opportunity was afforded to the appellant, we would hold that the order dated August 26, 1967 (of termination of his services passed by the Stated) suffers from a serious legal infirmity and must be quashed. He will, therefore, have to be treated is having continued in service till the age of superannuation and entitled to all the benefits incidental to such a declaration.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]24. The ratio of Mohd. Rashid Ahmed (Mohd. Rashid Ahmad v. State of U. P., (1979) 1 SCC 596   : 1979 SCC (L & S) 82) case therefore, squarely covers the case of the appellant.25. It was observed in that case that it is fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. The main requirements of a fair hearing, as pointed out by this Court earlier, are : (i) A person must know the case that he is to meet; and (ii) he must have an adequate opportunity of meeting that case. These rules of natural justice, however, operate in voids of a statute. Their application can be expressly or implicitly excluded by the legislature. But, such is not the case here. On the contrary, the two circulars issued by the State Government, to which a reference has been made earlier, expressly imported these principles of natural justice and required that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability, they must be given an opportunity of personal hearing by the Committee. The whole purpose of the personal interview was that, when it was proposed to declare an official unsuitable for absorption, the Committee had to afford him an opportunity to appear before it and clear up his position. Since it is nobodys case that such an opportunity was afforded to the appellant, we would hold that the order dated August 26, 1967 (of termination of his services passed by the Stated) suffers from a serious legal infirmity and must be quashed. He will, therefore, have to be treated is having continued in service till the age of superannuation and entitled to all the benefits incidental to such a declaration.