Case: Union of India &amp; Another Vs. Raghuwar Pal Singh

2. Briefly stated, the respondent was appointed to the post of Veterinary Compounder in the Department of Animal Husbandry and Dairying by one H.S. Rathore, the then Agriculture Officer, Central Cattle Breeding Farms (CCBF), Suratgarh, who was purportedly authorised only to look after the current duties of the post of Director. The appointment was made in November 1999 on a provisional and temporary basis, pursuant to the advertisement published in the newspaper on 15.10.1999. However, by an office order dated 29th August, 2000 issued under the signature of Dr. M.N. Haque, Director, the services of respondent came to be terminated. The said order readsry ofof All &335 804n compliance to Ministrys decision vide their letterdated 18thAugust, 2000, illegal appointment, of Shri Raghuwar Pal Singh S/o Shri Himat Singh Shekhawat to the post of Veterinary Compounder, made by the then Director Incharge Shri H.S. Rathore, agriculture Officer, without approval of the Competent Authority, vide this office order No.dated 24/30 November, 1999, is CANCELLED with immediate effect. Accordingly, his service stands terminated as per terms and conditions laid down in point v) & vi) of the offer of appointment letterdated 16/22 November, 1999.. The respondent assailed the said order by filing Original Application No.206 of 2000 before the Central Administrative Tribunal, Jodhpur Bench at Jodhpur, inter alia, on the ground that the appointment was made by the Board of Officers after they had duly considered the matter and who were competent to issue offer of appointment to the respondent. Further, if there was any irregularity in the appointment process, that could have been enquired into by the department, but without taking recourse to any inquiry, the impugned termination order had been issued. Such action was violative of Article 311 (2) of the Constitution of India. According to the respondent, his appointment was made after following all the formalities by the department in a fair and transparent manner. He asserted that the department was therefore, estopped from terminating his services. Further, the impugned order is not a termination simpliciter but would cause prejudice to the respondent. It is a stigmatic order indicating that the appointment of the respondent was illegal, for which reason also, principles of natural justice ought to have been adhered to by the department.The appellants resisted the said Original Application, by filing a detailed affidavit.The other two affected candidates had also challenged the termination order passed against them by way of Original Application before the Central Administrative Tribunal, Jodhpur Bench, Jodhpur. The Tribunal heard all the three O.As together as the issues raised therein were similar.The Tribunal, after analysing the relevant contentions of both sides, opined that there was no infirmity in the termination order passed against the concerned applicant including the respondent herein. The Tribunal notedIt is not in dispute that till his ad hoc appointment as Director, Regional Station for Forage Production and Demonstration, Suratgarh, Shri HS. Rathore, was only posted as Agriculture Officer, CCBF, Suratgarh. This is apparent from the order dated 22.12.99 (Arin.A/10 of OA 204/2000). It is also admitted fact that by virtue of order dated 25.8.92 (Ann.A/6 to the same OA), Shri Rathore was ordered to look after the current charge of the post of Director, CCBF, Suratgarh. One Dr. B.S. Singh, was earlier posted as officiating Director and declared Head of office. After posting of Dr. Singh, no declaration was made in favour of Shri Rathore for his continuation as Head of Office. Applicants contention is `that since Dr. Singh, never took charge of the responsibilities of Director, CCBF, Suratgarh, Shri H.S. Rathore, continued to function as Head of the Office. By order dated 15.7.99 one Shri M.N. Haque, was posted as Director and ordered to take over charge of the post of Director, CCBF, Suratgarh, from Shri H.S. Rathore. This order was stayed by this Tribunal vide order dated 10.8.99, passed in OAa consequence, Shri Rathore continued to look after the current duties of the post of Director, CCBF, Suratgarh.Feeling aggrieved, the respondent filed a writ petition in the High Court of Judicature for Rajasthan at Jodhpur, being D.B. Civil Writ Petition No.4235 of 2002. The Division Bench of the High Court, by judgment and order dated April 23, 2010, upheld the argument of the respondent that the Office Order dated 29.08.2000 merely records one fact that the appointment of the respondent was made without approval of the competent authority. In such a case, the services of respondent could be terminated only after giving him opportunity of hearing.g aggrieved, the respondent filed a writ petition in the High Court of Judicature for Rajasthan at Jodhpur, being D.B. Civil Writ Petition No.4235 of 2002. The Division Bench of the High Court, by judgment and order dated April 23, 2010, upheld the argument of the respondent that the Office Order dated 29.08.2000 merely records one fact that the appointment of the respondent was made without approval of the competent authority. In such a case, the services of respondent could be terminated only after giving him opportunity of hearing.Being aggrieved, the appellants filed the present Special Leave Petition. This Court not only granted leave to appeal but also stayed the operation of the impugned judgment during the pendency of the appeal before this Court.Now the question which arises for our consideration is whether an officer looking after the current duties of a post, could exercise the statutory power as vested in the regular incumbent of that post. In Government of India,me Affairs, OM No.dated 24.1.63, clarification was issuedofficer appointed to perform the current duties of an appointment can exercise administrative or financial powers vested in theincumbent of the post but he cannot exercise statutory powers whether those powers are derived direct from an act of parliament or rules Regulations andmade under various Articles of the constitutions (e.g., Fundamental Rules Classifications, Control and Appeal Rules Civil Services Regulations Delegations of Financial Powers Rules. By order dated 15.7.99 Shri. M.N. Hague, was posted as Director, CCBF, but only by virtue of the direction of this Tribunal in OA. 204/99, Shri Rathore, was permitted to look after the current charge. Obviously, this would not have empowered Shri Rathore to exercise statutory powers of the post of Director. For the purpose of statutory powers, he was only an Agriculture Officer. Thus, the contention of the learned counsel for the applicant that Shri Rathore had been declared as `Head of Office and so could have exercised powers of appointment by virtue ofof the CCS (CCA) Rules has no force. In view of the specific clarification given underin Government of Indias Order No.2 that an officer holding current charge of duties of a post cannot exercise statutory powers. The conclusion is obvious that Shri H.S. Rathore, at the time of recruiting the applicants, was only a Agriculture Officer looking after the current charge of the post of Director, CCBF, Suratgarh, and he had no authority to make any appointment to GroupC & D. It is a clear case of Shri Rathore exceeding his authority. Even if, he had processed the appointment, offer of appointments, obviously could not have been made while and unless, he had obtained approval from thee. In fact, he did make a reference to the Ministry on 16.11.99 seeking approval or filling up these posts but for reasons best known to him, he did not wait for this approval and went ahead and offered appointments to these applicants. This raise a serious doubt about the motive behind the haste on the part of Shri Rathore, in appointing these applicants. The plea now taken on his behalf that such approval was not required has no basis at all. This is more so, when the rules clearly provide that an officer looking after the current charge should not have exercised statutory powers of appointments.These appointments are vitiated on other grounds also. The fact that all the three applicants are related to Shri Rathore, cannot be a mereand reflects on the intention behind making these appointments. The ways the selection committee has been constituted by including evenmembers, is indicative of the irregular practice knowingly adopted by Shri Rathore while making theseg to the appellants, the respondent had not approached the Court with clean hands. In that, he has mentioned the numbers of the relevant documents, which pertain to some other case and not his order of appointment or termination. On merits, it was asserted by the appellants that the appointment of the respondent to the post of Veterinary Compounder was not as per the law. It was made by the then Director Incharge H.S. Rathore, Agriculture Officer and without approval of the competent authority. On the date of issuing the appointment letter, Shri H.S. Rathore had no authority to do so. It was asserted by the appellants that pursuant to advertisement dated 15.10.1999, appointment could be made only in conformity with the relevant Recruitment Rules, as amended from time to time, titled `Central Cattle Breeding Farm (Class III and IV Post) Recruitment Rules, 1969. In terms of the said Rules, an interview was required to be conducted by a Board comprising of three officers viz. Director of the Farm,Technical Officer and one Government Officer of Central/State Government. However, the selection process and interview in the present case were conducted by the Board unilaterally constituted by the said H.S. Rathore, consisting of seven members including himself, being Director Incharge. Further, he acted as the Chairman of the said Board. The Board consisted of the followingShri H.S. Rathore, 1/C DirectorShri S.C. Aggarwal, Executive Member Engineer, Central State Farm (SFCI Ltd.) (Not a Central Govt.Shri CS. Manohar, Asso. Professor Member Veterinary College, Bikaner (whereas a Veterinary Officer is already there in the officeShri R.L. Aswal, Asstt. Stn. Engineer Member All India Radio,Dr. M.S. Rathore, Project Officer Member URMUL Dairy, Chhattargarh (Which is not a Central/StateShri Baldev Singh, Agriculture Asstt. Member CCBF, Suratgarh (A Group `CShri A. Narsingh, Technical Asst. member CCBF (A Group `Cother words, the said Board was not validly constituted. Furthermore, the respondent was the son of the youngerof H.S. Rathore, the Director Incharge and Chairman of the Board. The Chairman of the Board had direct relation with and interest in the appointment of the respondent. It is then stated that as per the prescribed procedure, appointment is required to be made after obtaining prior approval from the competent authority i.e.e, Department of Animal Husbandry and Dairying, New Delhi. That procedure was, admittedly, not adhered to before issuing the letter of appointment to the respondent. For all these reasons, the appointment of the respondent as made by the then Director Incharge H.S. Rathore, Agriculture Officer, was without any authority of law. It was a fraudulent appointment. When the same was noticed by the department, soon thereafter, the subject office order dated 29.08.2000 came to be issued. It was stated that the appointment of two other candidates to the post of Junior Mechanic and Tractor Helper made by H.S. Rathore as Director Incharge also came to be cancelled by the department by issuing similar termination order. In addition, a departmental action has been initiated against H.S. Rathore for committing serious misconduct and abusing his official position during the relevant period. The appellants pointed out that one Dr. B.S. Singh was posted as Director CCBF, Suratgarh on ad hoc basis and was ordered to function as Head of Office during his tenure vide order dated 21.02.1995. No authorization was given to H.S. Rathore to issue letter of appointment. He was merely holding the post of Agriculture Officer. Considering the unilateral action of H.S. Rathore, major penalty memorandum was issued to him by the department on 22.06.2001 in particular with reference to the appointments made by him to the post of Veterinary Compounder, Junior Mechanic, Tractor Helper and milker and also on ad hoc basis to the post of LDC and UDC.

Court's reasoning:
15. Reverting to the subject office order, we are in agreement with the stand taken by the appellant that the same is a simpliciter termination and is no reflection on the conduct of the respondent. It merely explicates that his appointment was illegal having been made by the then Director Incharge H.S. Rathore, Agriculture Officer and without prior approval of the competent authority. No more and no less.For taking this contention forward, we may assume, for the time being, that the then Director Incharge H.S. Rathore, Agriculture Officer had the authority to issue a letter of appointment. Nevertheless, he could do so only upon obtaining prior written approval of the competent authority. No case has been made out in the Original Application that due approval was granted by the competent authority before issue of the letter of appointment to the respondent. Thus, it is indisputable that no prior approval of the competent authority was given for the appointment of the respondent. In such a case, the next logical issue that arises for consideration is: whether the appointment letter issued to the respondent, would be a case of nullity or a mere irregularity If it is a case of nullity, affording opportunity to the incumbent would be a mere formality and non grant of opportunity may not vitiate the final decision of termination of his services. The Tribunal has rightly held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the then Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law.There is yet another aspect which has been glossed over by the High Court. The subject office order dated 29.08.2000 opens with the statement that the same was issued in compliance with the Ministrys decision vide letterdt.18.08.2000. By reference to the saidof the Ministry, it stood incorporated in the subject office order. Besides, the subject office order explicitly states that the appointment of the respondent was illegally made by the then Director Incharge H.S. Rathore, Agriculture Officer. This reason of illegal appointment takes within its fold the unilateral constitution of the selection Board (not in accordance with the prescribed constitution of the selection Board) and also H.S. Rathore nominating himself as the Chairman of such Board, although disqualified to be on the Board because the candidate was related to him. As a result, the Ministry took holistic decision on 18.08.2000 at the highest level after reckoning all aspects of the matter including that it was not just a solitary appointment of the respondent, but also other appointment letters issued by H.S. Rathore under his signature. All such appointments have been nullified by the Ministry in the same manner in addition to initiating departmental action against H.S. Rathore. Tersely put, all appointments made by H.S. Rathore came under the scanner as being fraudulent and without authority. Such appointments would obviously be a nullity in law.The Tribunal had justly relied on the exposition in the cases of M. Bhaskaran (supra) and in particular, Kendriya Vidyalaya Sangathan (supra).In Dhirender Singh & Ors. v. State of Haryana & Ors., 1997(2) S.C.T 116 :termination of the appellant therein albeit without notice, was not interfered with by the Court as admittedly the same was not approved by the competent authority. The underlying principle will apply proprio vigore to the present case, as the letter of appointment has been issued by an officer who had no authority to do so and also because it was issued without waiting for the approval of the competent authority. Resultantly, there was no necessity to afford opportunity to the respondent before issuing the letter of cancellation of such appointment. The mere fact that such letter of appointment had been issued in favour of the respondent does not bestow any right in his favour much less to insist for an opportunity of being heard.Reverting to the impugned decision of the High Court, the High Court has not analysed the efficacy of the crucial reason recorded in the subject office order dated 29.08.2000 in its correct perspective. Indeed, the High Court has noted that prior approval of the competent authority was not mandatory. That observation, in our opinion, is manifestly wrong. We affirm the view expressed by the Tribunal that the appointment of respondent was not in conformity with the governing Rules and executive instructions in that regard.Further, the High Court could not have interfered with the subject office order solely on the ground that it was issued without affording an opportunity to the respondent. The other reason which had weighed with the High Court, in our opinion, will be of no avail to the fact situation of the present case. To wit, the fact that the subject office order does not attribute any motives to the then Director Incharge, can be no basis to invalidate the same. In our opinion, the office order records just and tangible reason as to why the appointment of the respondent is illegal. Unless the core reason mentioned in the subject office order was found to be untenable, the High Court could not have concluded that the subject office order was vitiated merely because it was issued without notice or lack of opportunity to the respondent. Similarly, the fact that the Tribunal has taken note of other grounds urged by the parties (other than the reason noted in the subject office order), per se, cannot be the basis to invalidate the subject office order which is otherwise just and proper. The High Court could have ignored those other reasons/grounds taken into account by the Tribunal.Reverting to the decisions relied upon by the respondent, we fail to understand as to how the decision in the case of The Remington Rand of India Ltd. (supra) will be of any avail to the respondent. In that case, the Court was called upon to consider the effect of not publishing the award passed by the Honble Tribunal within the statutory period. In the context of that question, the Court opined that the provision in Section 17(1) of the Industrial Disputes Act was merely directory and not mandatory and on that basis concluded that publication of award beyond 30 days would not make it invalid. In the present case, the letter of appointment could be issued by the designated director and only after grant of prior approval from the competent authority (the superior authority in the hierarchy of administrative set up). Without such approval, the then Director Incharge in no case could have rushed through the process of issuing the letter of appointment, an action which was without authority of law and a nullity.In the case of Karnal Improvement Trust, Karnal (supra), the Court considered the distinction between ministerial acts and statutory or quasi judicial functions under the statute and, in that context, observed that something should be done or in a particular manner and expressly declaring what shall be the consequence of non compliance, the effect thereof would be to treat the infraction as a mere directory requirement and not invalidate the action, so as to disregard the same. The principle expounded in this decision will be of no avail to the respondent. In light of factual matrix of this case, the letter of appointment in favour of the respondent was issued illegally by the Director Incharge H.S. Rathore, Agriculture Officer and without prior approval of the competent authority. It was a nullity.Even the case of Montreal Street Railway Company (supra) cannot come to the rescue of the respondent. In the present case, the requirement to obtain prior approval of the competent authority has been made an essential requirement and only then would the appointing authority be competent to issue letter of appointment. For, after the proposal is submitted for approval to the competent authority through proper channel by the official duly authorised to do so, the competent authority would reckon all aspects of the matter including whether the selection process has been properly followed in all respects. That would include the question such as whether the then Director Incharge could have constituted the Board of seven members, contrary to the established norms and moreso to act as Chairman of such a Board after full knowledge that the candidate appearing for the interview was his relative.We have no hesitation in concluding that in the fact situation of the present case, giving opportunity of hearing to the respondent before issuance of the subject office order was not an essential requirement and it would be an exercise in futility. For the view that we have taken, the exposition in D.K. Yadav (supra), which commended to the High Court, in our opinion, has no application to the fact situation of the present case concerning an appointment which is void ab initio and nullity.