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Judgment
Petitioner through the medium of this petition is seeking relief of issuance of writ of Certiorari for quashing order No. 2LAB of 1987 dated: 8th
of January, 1987 issued by the respondent No. 3, Chairman, JandK State Legal Aid and Advisory Board, Srinagar.
The petitioner was temporarily appointed as Under Secretary by the respondent No. 3, vide order No. 65. LAB of 1987 dated: 881985,
pending approval of the JandK State Legal Aid and Advisory Board. The respondent under the impugned order No. 2LAB of 1987 dated:
811987 have terminated the service of the petitioner. The order of termination has been challenged on the ground that the services of the petitioner
could not have been terminated as it was for the Board either to approve or disapprove the appointment of the petitioner. He has relied upon Rule
(9) and (10)of the JandK State Legal Aid to the poor Rules, 1984 (herein after referred to as Rules) which deal with the appointment of the
Officers and servants of the Board, for seeking support that there is no provision in the Rules for termination of the services. The impugned order
has been termed as arbitrary, illegal and issued without any notice of show cause.
The respondents have opposed the relief claimed by the petitioner by filling counter affidavit stating therein that the petitioner was appointed by
the Chairman and not by the Board. The Board has not delegated any such power to the Chairman for appointment of the petitioner. Therefore,
the appointment order of the petitioner is nullity being issued without jurisdiction therefore, does not confer any right upon the petitioner. It was
obligatory for the Chairman to seek approval of the Board first and then to appoint the petitioner. Rules (9) and (10) of the Rules contemplate that
the appointments of the officers and the servants of the Board cannot be made by the Chairman but only by the Board, which constitutes of the
Chairman and the members of the Board. The servants of the Board are the Government servants and the provisions of Jammu and Kashmir Civil
Service Regulations are applicable to them. The impugned order has not violated any right of the petitioner which stand implemented since 8th of
January 1987 and the petitioner has also been relieved.
I have heard learned counsel for the parties and perused the record. In pursuance to Rule 4A of Rules, Legal Aid Board was constituted to
afford Legal Aid to the poor. Rules (9) and (10) of the Rules deal with the appointment of the Officers and the servants of the Board which reads
thus:
Officers and Servants of the Board: Save as otherwise provided in rule 10, the Board may appoint as many officers and servants as it consider
necessary for the efficient performance of its functions under these rules and such officers and servants shall be governed by such conditions of
service, as may from time to time be laid down by the Board. However, such members of the staff who are on deputation from the Government
shall during such deputation be under the administrative control of the Law Department.
Other officers of the Board:The Secretary of the Board shall be appointed by the Government and shall be governed by such rules and
conditions of service, as may from time to time be determined by the Government in consultation with the Board.
The appointment of the petitioner came to be made under order No. 65LAB of 1985 dated: 881985 which reads as:
OFFICE OF THE JandK STATE
LEGAL AID AND ADVICE BOARD,
CIVIL SECTT. SRINAGAR
ORDER No. 65LAB of 1985 DATED: 881985
Pending approval by the JandK State Legal Aid and Advice Board, sanction is accorded to the temporary appointment of Sh. Abdul Aziz Shah
S/o Ghulam Hassan Shah R/o Khan Sahib Budgam, as underSecretary in the pay scale of Rs. 10001560 in the JandK State Legal Aid and Advice
Board.
The appointee shall be governed by the same terms and conditions of service as will be determined by the JandK State Legal Aid and Advice
Board.
By Order of the Chairman Sd/
(B.A.Magray)
Secretary
JandK State Legal Aid and Advice Board(Sgr).
The petitioner seeks support of Rules 9 and 10 of the rules to depict that the Chairman has no power to undo the appointment of the petitioner.
In order to appreciate arguments of the petitioner the impugned order is also reproduced here under:
OFFICE OF THE JandK STATE
LEGAL AID AND ADVICE BOARD,
CIVIL SECTT. JAMMU.
ORDER NO. 2LAB OF 1987 DATED: 8.1.1987
Whereas Shri Abdul Aziz Shah son of Kh. Ghulam Hassan Shah resident of Khan Sahib Budgam appointed temporarily as Under Secretary Legal
Aid and Advice Board, pending approval by the Board.
Whereas the JandK State Legal Aid and Advice Board has not so far approved the said appointment of Shri Abdul Aziz Shah, the said Ab. Aziz
Shah is continuing as such without approval of the Board.
Whereas the said Ab.Aziz Shah has also been found overaged and is not within the age limit prescribed for entry [SIC] with the Government
service.
Now, therefore, the service of Shri Ab. Aziz Shah are hereby terminated with effect from 8.1.1987.
By Order of the Chairman
Sd/
Sccrctary
State Legal Aid and Advice
Board.
Conjoint reading of both these orders emerges out an admitted fact that the appointment of the petitioner, was pending approval by the Board.
Perusal of Rules 9 and 10 of the Rules does not envisage any such preposition that the Chairman has such power, authority or a delegatee to
appoint the petitioner without the approval of the Board. It is only the Board who has the absolute power and authority to appoint as many officers
and servants as it considers necessary for the efficient performance of its functions.
The impugned order is said to be illegal, unconstitutional and arbitrary on the ground that it was necessary for the Chairman to place the case of
the petitioner before the Board, for its consideration. The question now which falls for consideration of the Court is that: (i) whether it was
obligatory under rules for the Chairman to place the order of appointment of the petitioner before the Board, (ii) whether the Chairman cannot
undo his action though the power exercised is not in accordance with law; and (iii) Is it not incumbent upon the petitioner to show the authority of
law, in exercise of which, the appointment of the petitioner has been made by the Chairman. The Rules position as emerged above suggests that
the Chairman's action of issuance of the appointment order is not in exercise of his powers under the Rules and the Board has also neither
authorized nor delegated such powers to the Chairman by a resolution of the Board, for making such an appointment.
The argument of the petitioner is that once the petitioner stand appointed, it was obligatory upon the respondentBoard to approve or disapprove
the action of the Chairman, need to be appreciated in the context of law. The learned counsel for the petitioner could not get support from any
Rule which makes it obligatory for the Chairman to place the case of the petitioner before the Board. The order passed by any authority having no
jurisdiction or power under any Rule to pass such an order is an illegal and arbitrary and such an order does not vest any right in the beneficiary.
The law postulates that the action of the authority must be in accordance with law and in the manner provided by law. The action of appointment of
the petitioner by the Chairman is neither as required by law nor in the manner provided by law. Keeping in view the legal position, the order of
appointment appears to have been issued without any jurisdiction. Consequently, it does not vest any right in the petitioner to hold the post, or
otherwise to ask the respondent to place the order of appointment before the Board. The petitioner must, before asking the respondent to refer his
case to the Board, prove that his appointment order is valid in law. Unless the authority of the Chairman is shown for making appointment to the
petitioner, neither it is obligatory for the Chairman nor for the court to direct the illegal and arbitrary action of the Chairman to be placed before the
Board as an illegal action does not vest any right in the beneficiary. Undoubtedly, during the period the petitioner was holding the post, the
Chairman could have referred the case to the Board and got determined his action, the order impugned cannot or be quashed by the court until the
petitioner establishes before the court that his appointment was validly made under rules and the impugned order is issued in violation of the rules.
The petitioner has failed to discredit the contention of the respondent and it is proved that the Chairman had no authority to issue such an order of
appointment. It is absolute prerogative and power of the Board to appoint the officers and the servants of the Board in terms of Rule 9 and 10 of
the Rules. The impugned order having found not suffering for the mandate of any rule or law cannot be termed as illegal, arbitrary or
unconstitutional.
The petitioner in support of his contention has cited Judgment delivered in writ petition No. 50 of 1987 titled Miss. Anita Attal Versus State of
JandK and others The court while appreciating the facts has observed:
Mr. Qayoom while arguing the case has submitted that the appointment order of the petitioner dated 1611986 does not make her appointment
subject to the approval of the Board. It is issued by the Chairman of the Board either having its previous approval or he was delegate of the
Board, but nowhere in the said order it is reflected that the appointment of the petitioner was pending^ approval by the Board. Therefore, anything
said in the impugned order in this regard is to be ignored. This fact could be ascertained from the record which was undertaken to be produced by
the learned counsel for the respondents. He has not produced the same.
The court held:
From the reading of the two orders i.e., the appointment order and the impugned order, the Board seems to have justified termination of the
petitioner on the ground that they have construed the appointment of the petitioner in the first instance pending approval of the Board or subject to
the approval of the Board. This is not the admitted position. The true position is to be ascertained from the initial appointment order. Initial
appointment order makes her appointment as [SIC] unconstitutional. Only two inferences are possible to be drawn. Either the Chairman was given
authority by the Board or Board must have passed a resolution for the appointment of the petitioner as Junior Legal Assistant. The contention of
the respondents that the appointment of the petitioner without any authority cannot be accepted unless same is substantiated by the respondents on
the basis of record. Record is withheld and despite having undertaken to produce the record inability is shown to produce the same. Therefore,
lack of authority on the part of Chairman to appoint the petitioner cannot be inferred. Termination order of the petitioner on this ground that the
petitioner's appointment did not have the approval of the Board cannot be accepted.
The facts of both the cases are distinguishable. The Judgment pointed (Supra) by the learned counsel deals with a fact where the stand of the
respondent was that the appointment order was subject to the approval of the Board or pending approval by the Board. The respondents could
not counter the claim of the petitioner that the order of appointment contained such a stipulation. The court tried to find out the truth summoning the
record which was withheld by the respondents. Under those circumstances, the court delivered the Judgment observing that the respondents have
withheld the record and accordingly have failed to prove that the order of appointment was pending approval by the Board.
The dispute involved in the present petition is different. The admitted case of the parties herein is that the order of appointment of the petitioner
is pending approval by the Board, and there is no authorization of the Board to the Chairman to pass such an order. The Judgment (Supra) is not
applicable to the case of the petitioner.
The petitioner has further contended that notice of show cause has not been issued before passing the impugned order which is relatable to the
observance of principles of natural justice as according to him the effect of the impugned order is punitive in nature.
It has observed earlier that action of the Chairman being illegal does not vest any right in the petitioner to hold the post and accordingly, no
fundamental right of the petitioner is violated. The termination of the illegal appointment cannot be said to be punitive in nature.
The only question to be replied is whether under such circumstances the requirement of principles of natural justice should be complied with,
depends upon the facts of a particular case. What is required to be seen is that whether the nonobservance of the principles of natural justice in this
case has resulted in deflecting the course of justice. Once it is observed that the appointment of the petitioner was illegal which does not vest any
right in the petitioner to continue, the observance of principles of natural justice is only a technical formality and even by observing principles of
natural justice, the^ petitioner cannot improve upon his case and make the impugned order legal and workable. Therefore, the petitioner is not
justified in demanding the observance of principles of natural justice unless the petitioner has legs to stand upon.
For the foregoing reasons the writ petition is dismissed without any order as to costs.