Mazharul Islam Hashmi vs State Of U.P. And Anr. on 7 February, 1979 Equivalent citations: AIR1979SC1237, (1979)4SCC537, 1979(11)UJ293(SC), AIR 1979 SUPREME COURT 1237, 1979 ALL. L. J. 782, (1978) SERVLR 140, 1978 MCC 412, 1977-78 MCC 412, 1979 UJ (SC) 293, 1979 SERVLR 140, (1979) 2 SCJ 408, (1979) 3 SERVLR 297, 1979 (4) SCC 537 Author: R.S. Sarkaria Bench: O. Chinnappa Reddy, R.S. Sarkaria JUDGMENT R.S. Sarkaria, J. 1. Appellant, Mazharul Islam Hashmi, was appointed as Sanitary Inspector on June 8, 1936 by the Municipal Board of Moradabad. He was confirmed in that post in 1937, and was further promoted to the post of permanent Chief Sanitary Inspector in the service of the Board on June 4, 1957. 2. Both the U.P. Nagar Mahapalika Adhiniyam, 1959, and the U.P. Municipalities Act, 1916 empowered these local bodies to employ their employees subject to certain regulatory control by the State Government. 3. Subsequently, in 1964 the State Legislature enacted the U.P. Nagar Mahapalika (Sanshodhan) Adhinisam, which added Section 112A to the UP. Nagar Mahapalika Adhiniyam, 1959. Similarly, by Section 37 of the U P. Municipalities (Amendment) Act, 1964. Section 69B was added to the U.P. Municipalities Act, 1916, which was identical, in terms, to Section 112A. Section 112A empowered the State Government to provide by roles for the creation of one or more services to be known as Centralised Palika Service, as it may deem fit and proper, common to a!l the Municipal Corporations and Municipal Boards, and authorised the. same to prescribe the method for recruitment end conditions of service of persons appointment to any such service. Section 112A of the Adhiniyam of 1959, reads thus: 112A Centralization of Services.-(1) Notwithstanding anything contained in Sections 106 to 110, the State Government may at any time by rules provide for the creation of one or more services of such officers and servants as the State Government may deem fit, common to the Mahapalika or to the Mahapalikas and Municipal Boards of the State, and prescribe the method of recuitment and conditions of service of persons appointed to any such service. Mazharul Islam Hashmi vs State Of U.P. And Anr. on 7 February, 1979  1 (2) When an such service is created, officers and servants serving on the posts included in the service, as well as officers and servants performing the duties and functions of those posts under Sub-clause (1) of Clause (ee) of Section 577, may, if found suitable, be absorbed in the service, provisionally or finally, and the services of others shall stand determined, in the prescribed manner. (3) Without prejudice to the generality of the provisions of Sub-sections (1) and (2), such rules may also provide for consultation with the Slate Public Service Commission in respect of any of the matters referred to in the said sub-Sections. 4. Acting under Section 112A of the Adhiniyam of 1959 and Section 69B of the Municipalities Act 1916, the Stare Government framed the U.P. Palika (Centralised) services Rules, 1966, which were promulgated under Notification dated July 9, 1968, published in the Government Gazette on that date and came into force on the same date. Rule 6 dealt with recruitment to the Centralised Palika Services, which were created by these Rules. 5. These Rules of 1966 brought under the Centralised Service, the services of the Chief Sanitary Inspector and Sanitary Inspectors of Nagar Mahapalikas of Classes I, II and III and a number of services of other officers of Nagar Mahapalikas and Palikas of Uttar Pradesh. The Municipal Board, Bareilly, is a class I Board constituted and established under the U.P. Municipalities Act. 6. On July 9, 1966, under these Rules, the appellant was transferred on July 1, 1966 from Municipal Board, Moradabad to Municipal Board, Bareilly, as the Chief Sanitary Inspector, and since his transfer, he was working there in that capacity. 7. Rule 6 was not properly drafted in conformity with the requirements of Section 112A and Section 69B, and its Clause (i) provided for automatic final absorption of officers and servants provisionally absorbed under Section 577(a), contrary to the provisions of Section 112A of the Adhiniyam and Section 69B of the Municipalities Act. 8. On September 5, 1966, the Governor promulgated the U. P Local Self Government (Amendment) Ordinance, 1966, which was repealed and replaced by the U.P. Local Self Government Laws (Amendment) Act, 1966. Section 19 of this Amendment Act, reads as under: 19. Deeming, Validation, etc.- The Uttar Pradesh Palika (Centralised Services Rules, 1966. shall be deemed to have been made under the provisions of the Uttar Pradesh Nagar Mahapalike Adhiniyam, 1959, and the U. P. Municipalities Act, 1916, as if the amendments made by this Act to the said Acts were always in force and be deemed to be and always to have been valid and shall, subject to any amendments made thereto, continue in force, and notwithstanding anything contained in the said Acts, the power to make amendments to the said rules may, during the period ending on September 4, 1967, be exercised retrospectively. Mazharul Islam Hashmi vs State Of U.P. And Anr. on 7 February, 1979  2 9. In effect, Section 19 amended Section 112A of the Adhiniyam and Section 69B of the Municipalities Act. Section 4 of the Act provided that U P. Palika (Contralised) Services Rules. 1966, shall be deemed to be valid. The Act further provided that amendments made to the rules, may be given retrospective effect. The power of making retrospective rules was, however, limited to a period of one year from the commencement of the Ordinance. 10 By a Notification dated October 10, 1966, published in the State Gazette of that date, the Governor promulgated the Uttar Pradesh (Centralised) Services (Amendment) Rules, 1966. These rules repeated and re enacted Rule 6 with retrospective effect from July 9, 1966, Under Clause (i) of Rule 6(2), the State Government had to pass a final order of absorption in respect of all officers and servants of the erstwhile Municipal Boards, if they were found suitable, in accordance with Section 112A of the Adhiniyam. Clause (iii) provided that such. orders had to be made order on or before March 31, 1967, By Clause (iv), if no orders of final absorption were passed till then, then the officer or servant concerned was to be deemed to have been finally absorbed. Since work of final absorption of the employees could not be completed by March 31, 1967, The State Government promulgated the U. P Palika (Centralised) Services (Amendment) Rules, 1967 on March 30; 1967, where by Clause (iii) of Rule 6(2) was amended and the date of passing the necessary orders in that behalf was shifted to June 3, 1967 A new Clause (iii) was accordingly substituted by this amendment effected on March 30, 1967. However, it was stated that the amendments affected on March 30, 1967. However, it was stated that the amendment would come into force from April 1, 1967. This created a serious legal infirmity because on the expiry of March 31, 1967, the legal fiction provided in Clause (iv) would automatically result in absorption of the employee, if no orders in respect of him were passed by that dated. 11. To remove this infirmity, the State Government made the last amendment to the rules by promulgating U P. Palika (Centralised) Services (Amendment) Rules, 1967 on June 26, 1967 in supersession of the U. P. Palika (Centralised) Services (Amendment) Rules, 1967, that had been earlier promulgated on March 30, 1967. This amendment of June 1967, substituted a new Clause (iii) to Rule 6(2) in place of the old Clause (iii), and thus the last date of passing the orders was shifted from March 31, 1967, with retrospective effect from July 9, 1966. 12. The State Government issued three Circulars laying down the procedure, by which an officer or servant provisionally absorbed under Section 577(e) or temporarily appointed under Section 577(ee), were to be finally absorbed, if found suitable, under Section 112A. Those Circulars are dated January 11, 1967, January 31, 1967 and February 23, 1967, addressed to the Divisional Commissioners, By virtue of these Circulars, Divisional Committees were to be constituted for making necessary recommendations to the State Government. In the first Circular, the Government enacted its policies in the matter in these terms: Government desire that all officers and servants, whose services are proposed to be determined on ground of unsuitability, may be given an opportunity of personal interview by the Committee. Mazharul Islam Hashmi vs State Of U.P. And Anr. on 7 February, 1979  3 After such interviews, the Committee were to finalise their recommendations and furnish the same to the Government. 13. By the second Circular, the State Government reconstituted the Committees to tar as the five Municipal Corporation were concerned and directed that these Divisional Committees were to make selections for all Centralised Services except those whose starting salary was RS. 500/ and above. Selection for the posts in the latter category were to be made by she State Selection Committee. Thus, the Government divided the officers and servants into two categories, and their cases were to be dealt with at two different levels for purposes of final absorption under Rule 6(2)(iii) read with Section 112A. 14. By its third circular, the State Government without disturbing the earlier categorisation of officers and servants into two clases, laid down certain broad criteria, with a view to secure a reasonable uniformity in the standards to be applied by the Divisional Committees 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 Committees, and the official concerned should be given a chance to clear up his position with reference to any adverse entries appearing in his service record. It was, also desired by the Government only those adverse remarks may be considered against the official concerned, which were found to have been duly communicated to him. 15. The appellant's 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 function contained in Rule 6(2)(iii). But. on September 6, 1967, an order of the State Government dated August 28 1967, was served upon him, intimating that his services had been terminated under the U.P. Palika (Centralised) Rules. 16. The appellant's 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 28, 1967, terminating his services, 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 terminadated. The learned Single Judge, who tried these writ petitions, dismissed them by a common judgment, dated March 27, 1968. 19. The appellants 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 petitioners, 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 One Mazharul Islam Hashmi vs State Of U.P. And Anr. on 7 February, 1979  4 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, impugns the termination of his services precisely on the same ground. 22. Mr. Dixit, who appears for the respondents State, does not dispute the appellant's allegation that no opportunity or notice was given 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 on August 7, 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 service thereafter. If the 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 appellant's 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' case (ibid), therefore, squarely covers the case of the appellant. 25. It was observed in that case that it is a fundamental rule of law that no decision must be taken which will affect the rights of any person with out 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 Ci:rulars 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 un suitable for absorption, the Committee had to lafford him an opportunity to appear before it and clear up his position. Since it is nobody's case that such an opportunity was afforded to the appellant, we would hold that the order dated August 28, 1967 (of termination of his services passed by the State) suffers from a serious legal infirmity and must be quashed. He will, therefore, have to be treated as having continued in service till the age of superannuation and entitled to all the benefits incidental to such a Mazharul Islam Hashmi vs State Of U.P. And Anr. on 7 February, 1979  5 declaration. 26. In the result, the appeal succeeds and is allowed. In the circumstances of the case, there shall be no order as to costs. Mazharul Islam Hashmi vs State Of U.P. And Anr. on 7 February, 1979  6