Kadir Khan vs State of M.P. and others

Abhay M. Naik, J.

This petition has been preferred against the order dated 17-9-2002 marked as Annexure A/1 cancelling thereby the order of appointment dated 3-9-2002 with immediate effect.

Case of the petitioner is that pursuant to the advertisement issued by Madhya Pradesh, S.A.F, the petitioner applied for the post of Constable (G.D.) in the Police Department S.A.F. He cleared the examination and physical test. He was selected as per the merit and was appointed on the post of constable in the pay scale of Rs. 3050-75-3950-80-4590 vide order of appointment marked as Annexure A/6. Petitioner gave his joining which was duly recorded in the Roj Namcha. Thereafter, petitioner was served with the impugned order dated 17-9-2002 whereby he was informed that his services were not required by the Government and his appointment was cancelled with immediate effect. This order has been challenged on the ground that after joining on the post of Constable after getting selected in the manner prescribed for direct recruitment, a right has accrued in favour of the petitioner which cannot be snatched away in the impugned manner. Petitioner was not served with any show cause notice and no opportunity of hearing was granted before cancelling his appointment. Thus, there is flagrant violation of rules of natural justice and the impugned order contained in Annexure A/1, is unsustainable in law.

In the return, it has been admitted that the petitioner was selected on the post of Constable (G.D.) in accordance with the prescribed procedure and as per merit. It has been averred that the entire selection list pertaining to recruitment on the post of constables made in the month of February, 2002 was cancelled by the Additional Director General, S.A.F. in accordance with the order issued by the office of P.H.Q.

Accordingly, it is stated that since the entire select list was cancelled, the appointment order issued in favour of the petitioner cannot survive. Moreover, petitioner having been probationer, it is stated that he can be removed in the impugned manner.

Shri Pawan Dwivedi and Shri K.M. Mishra, P.L. made their submissions which have been considered in the light of the material available on record as well as the relevant provision of Madhya Pradesh S.A.F. Rules 1973.

Rule 26 provides for appointee on probation. Sub-rule (3) merely states that services of the probationer during the period of probation may be brought to an end if in the opinion of appointing authority there is no likelihood of such person becoming a suitable officer in the S.A.F.

In view of the aforesaid, services of probationer may be definitely brought to an end provided such appointee in the opinion of the appointing authority may not become a proper and suitable officer in S.A.F. Since the reason for bringing to an end to the service of probationer is mentioned in Rule 26, the respondents are not only expected but are equally required to act within the framework of the aforesaid provision while bringing an end to the service of such probationer.

On perusal of Annexure A/1 it is amply clear that there is no finding that the petitioner would not become competent police officer in S.A.F. Annexure A/1 is virtually single line order based on the ground that services of the petitioner are no more required by the Government.

Shri Pawan Dwivedi, learned counsel for the petitioner drew attention of this Court to Annexure A which is fresh advertisement issued for recruitment on the post of constable in the same Battalion. It clearly goes to show that services of constables in the same S.A.F. Battalion are still required. Thus, reason assigned in Annexure A/1 is not sustainable at all and the impugned order having been passed without giving an opportunity of hearing to the petitioner is equally not sustainable in law.

At this juncture, Shri K.M. Mishra, learned Panel Lawyer contended that serious irregularities and illegalities were committed in the selection made in February, 2002 therefore, the entire selection list was cancelled.

However, from the material available on record, no iota is found which may be said to have caused the cancellation of select list.

Considering the same, I am of the opinion, that Annexure A/1 having been issued to the petitioner without issuing any show cause notice and without giving any opportunity of hearing is not sustainable, hence the impugned order (Annexure A/1) is hereby quashed.

Shri K.M. Mishra, learned P.L contended that on account of serious illegality and irregularity the list of appointment was rightly cancelled and persons selected on the basis of such process of selection shall have no right to continue.

This Court has to take care of the aforesaid expression, consequently, it is made clear that in case, entire selection is vitiated on account of serious irregularities and illegalities, respondents would be free to take suitable action in accordance with law. Quashment of Annexure A/1 does not mean that select list, if vitiated, shall have to revive. Respondents would obviously be within their powers to pass suitable order in accordance with law after giving proper opportunity of hearing to the petitioner.

No order as to cost.