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Judgment
Petitioners I to 4 were appointed Junior assistants by the Executive Officer, Srinagar Municipality by his order dated 01091995. On the same
day, he also appointed petitioners 5 to 8 as class IV employees in the Srinagar Municipality, all the petitioners, it is admitted were removed from
service by the respondents vide order No. 1078 of 1995 dated 15121995.
Petitioners challenge the order of termination on the ground of being violative of Article 14 and 16 of the Constitution as also provisions of J and
K Civil Service (Classification, control and Appeal) Rules 1956 because they were not heard before passing the impugned order, thereby violating
the rules of natural justice. Since the order impugned according to the petitioners is violative of rules of natural justice, it is prayed that they be
deemed to be in service and entitled to the pay and emoluments of the posts on which they were appointed.
Respondents while controverting averments made in the petition have maintained that the appointment of petitioners being void because the
Executive Officer of the Municipality was not empowered to make such appointments, the order of their removal is legally valid because a void
order of appointment did not create any right in them.
Mr. Altaf Haqani, learned Advocate appearing for the petitioners argued that under Section 52 of the Municipal Act, Executive Officer is
empowered to make appointments and, therefore, petitioners were validly appointed and they could be removed from service only in accordance
with law. He also submitted that petitioner having discharged the duty of the post on which they were appointed and paid the salary for the period
they worked they could be removed from service only by observing the rules of natural justice. Since the petitioners were not given any show
cause notice, it is argued, the order of termination is void and they are deemed to be in service and salary of the post is also payable to them.
Mr. Manzoor on the other hand submitted that the Executive officer had no authority to appoint the petitioners as it is only the Municipal council
and in its absence, the Administrator who is empowered to make such appointments, he also pointed out that even the appointing authority has no
power to make appointments without inviting applications from all the eligible candidates and since petitioners were appointed without inviting such
applications and holdingany test or interview, their appointments are void being in contravention of Article 14 and 16 of the Constitution of India
The short point involved for consideration is (i) whether the Executive Officer of the Municipality is competent to appoint the petitioners; and (ii)
whether the appointments of the petitioners were made after inviting applications from the eligible candidates. Section 52 of the Municipal Act
reads as follows:
52 appointment of other officers and servants. Subject to the provisions of this Act the Council may appoint such other officers and servants as
are necessary for the efficient carrying out of the purposes of this Act and may assign to them duties and pay them such salaries and allowances as
it may determine from time to time;.....
So it is only the Municipal council who could appoint the petitioners and when the council is not existing, it is the Administrator who is
empowered to make appointments.
As the Executive officer was not competent the appointment orders of the petitioners were void and do not confer any right on the petitioners.
When such is the case, the question arises whether rules of natural justice are required to be followed, according to Mr. Haqani, the point is
covered by the judgment of the apex court. AIR 1991 SC 309,whereas the contention of Mr. Manzoor is that the judgment has no application to
the facts of the case which are entirely different as the appointments have been made by a person not authorised by law, which was not in that
case. In Shrawan Kumar's case (AIR 1991 SC 2309 ) was, however, decided in the peculiar facts and circumstances of the case as is evident
from para 3 of the judgment, relevant portion of which is extracted below:
..............It is not necessary to go into all the these questions. In the facts and circumstances of this case, we are of the view that the appellants
should have been given an opportunity of hearing before canceling their appointments. Admittedly, no such opportunity was afforded to them. It is
well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the
impugn order of cancellation dated November 3,1988 on this short ground. As suggested by the learned solicitor General, we direct that the
Secretary (Education), Government of Bihar, or to other person nominated by him should given an opportunity of hearing to the appellants and
thereafter given a finding as to whether the appellant were validly appointed as Assistant Teachers.................
Since the facts do not indicate that the appellants were not validly appointed, their right of prior notice was up held. But in Union of India
V.Anand Kumar Pandey (AIR 1995 SC 388 ) , it has been pointed out that:
......This court has repeatedly held that the rules of natural justice cannot be put to a straitjacket, applicability of these rules depends upon the facts
and circumstances relating to each particular given situation......
The case of Shrawan Kumar Jha has been decided by applying the principle without laying down the general proposition of law. This has been
reiterated in Ashwani Kumar V. State of Bihar (AIR 1996 SC 2833) which reads:
......... Courts have to examine in each case the balance of fairness, whether the violation of the principle of audi alteram partem visits with
irremediable civil consequences and its incursion on administration, if action is invalidated. No set rule or standard of universal application can
possibly be laid exercise their power of judicial review with circumspection to weigh in balance the fairness of action. Therefore, though the
principles of natural justice are omni pervasive, in given circumstances their nonapplication may also advance cause of justice to prevent misuse or
abuse of power or of the judicial process................
So the observance of rules of natural justice is not a principle of universal application, but its application depends upon the particular facts and
circumstances of each case.
In S.L.Kapoor Vs.Jagmohan, AIR 1981 SC 136 it was held that:
.............Whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference when
the admitted or indisputable facts speak for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the
law only Jone penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the
nonobservance of natural justice but because Courts do not issue futile writs.
Since it is admitted that the appointments were made but the Executive officer who in view of the mandate of section 52 of the Municipal Act
was not competent to make such appointments, the result would not be different, even if rules of natural justice are, observed. Since the orders
impugned are void, the question is what consequences follow there from. This question came up for consideration before a Full Bench of Patna
High Court in Rita Misra Vs. State of Bihar AIR 1988 Pat.26, where in it was held that:
This stand has only to be noticed to be rejected, undoubtedly the burden must lie on the petitioners and it is they who have to establish their claim
on the basis of a valid appointment and not for the respondent State to prove the negative. The claim of a full dress inquiry after associating the
petitioners in a writ of mandamus is plainly ill founded and does not lie in the mouth of the petitioners. On principle and even on the basis of
precedent on which reliance was placed by the petitioners too, it is wholly settled that where the very original appointment to the service is invalid
or forged or fraudulent then in the eye of law there is no appointment at all and declaration by the State that the alleged appointment is nonest does
not attract any principle of natural justice. It is unnecessary to elaborate this on principle because it is covered by the observation of the Full Bench
in the aforementioned case of Bijoy Kumar Bharti (1983 Lab 1C 1884 ) (supra). Therein S.Sarwa Ali, Acting C.J. observed ""No one has a right
to be appointed irregularly. His position is that of a person who has no right to the post. There is no stigma attached in the removal........... do not
think therefore, that in such a situation there is anything unfair in taking the decision without hearing the person likely to be affected.
It cannot be disputed that whenever the service of a person appointed on temporary basis is terminated saying that the appointment in question
had been made in an irregular or illegal manner, it does not amount to any stigma or penalty. In my view, such orders cannot be held to be invalid
because before passing such orders opportunity to show cause was not given to the person concerned.
Even at the cost of repetition, particular reference is called for afresh to the case of Diwaker Prasad Yadav V.State of Bihar (1986 Pat LJR 873)
(supra) where in B.P.Sinha, J.speaking for the Division Bench held as follows:
To sum up I find and. hold that the petitioners of these writ applications have not been validly apposed. they cannot challenge the impugned orders
on the ground of alleged violation of principles of natural justice. I also hold that they are not entitled to any direction for payment of arrears of their
salary for the period they claim to have worked, it would be manifest from the authoritative findings of the Full Bench and the Division Bench that
even in cases of termination of services, the rules of natural justice are not attracted where the original appointment itself is void ab initio. Now
once that is so, a fortiori, no question of any rules of natural justice arises merely in the case of refusal of salary in an identical context.
Similarly the apex court in Biswa Ranjan Sahoo and others Versus Sushanta Kumar Dinda and others, AIR 1996 SC 2552, ruled as under:
...........In a case like mass malpractice as noted by the Tribunbal, as extracted here in before , the question emerges, whether the notice was
required to be issued to the persons affected and whether they needed to be heard? Nothing would become fruitful by issuance of notice.
Fabrication would obviously either be not known or no one would come forward to bear the brunt . Under these circumstances, the Tribunal was
right in not issuing notice to the persons who are said to have been selected and given selection and appointment. The procedure adopted is in
flagrant breach of the rules offending articles 14 and 16 of the Constitution.
So on the admitted facts of the case, it was not necessary to observe the principle of ad adi alteram paretem / in this case as a void order creates
no enforceable right. Therefore, the order impugned does not suffer from any infirmity.
In view of the above, the petition is dismissed without any order as to costs.