Mohd. Imran Khan vs State of U.P. and Others

S.H.A. Raza and Kamal Kishore, JJ.—The factual matrix of this case as set out in the writ petition as well as the special appeal in short compass appears to be is that on 23rd March, 1996 the appellant was appointed as Junior Clerk by the Deputy Director, Social Welfare Department, Faizabad against a clear, temporary vacancy but subsequently on 3-6-96 after the appellant joined the service, the conditions were altered and the appellant was shown to be appointed as stop gap arrangement in the vacancy which accrued due to suspension of one Maharana Pratap Singh. On the reinstatement of Maharana Pratap Singh the appellant was disengaged from the service on the basis of the impugned order dated 8-8-96. The appellant''s representation against the dismissal was turned down by the Director, Social Welfare Departmental on 23rd December, 1996. The appellant thereafter, approached the Chief Minister for the redressal of his grievance, a copy of which was also endorsed to the Principal Secretary, Social Welfare Department on which the comments were called for by the Director, Social Welfare Department but no final decision was taken till the date of the decision in the writ petition bearing No. 580 (SS) of 1998 which was preferred by the appellant assailing the order of his disengagement/termination from service.

Before Hon''ble the Single Judge, it was submitted that the appellant was appointed against a clear vacancy, therefore, unilateral change in his service conditions by showing his appointment as a short of stop-gap arrangement was unsustainable. But the contention of the appellant was repelled by the opposite parties mainly on the ground that the Deputy Director, Social Welfare Department was not the appointing authority because the power to make all appointments may be temporary ad hoc and fortuitous in nature could be passed by the Director of the Department only in accordance with Service Rules, 1991.

Hon''ble the Single Judge was of the view that as the appointment itself originated from an unauthorised person, therefore, the appellant cannot be heard complaining against his impugned disengagement or change in the service conditions. After all the very concept of the service means, a service lawfully obtained from a legally authorised authority. Hon''ble the Single Judge was pleased to dismiss the writ petition on 4.12.98. Being aggrieved against the said order passed by the Hon''ble Single Judge, the appellant has filed the present especial appeal.

Non-arbitrariness is an essential facet of Article 14 of the Constitution of India which pervades the entire realm of principle of audi alteram partem of State action governed by Article 14 of the Constitution of India. The principle of audi alteram partem is antithesis of the arbitrariness. The principle of audi alteram partem is another facet of non-arbitrariness which is embedded and ingrained in Article 14 of the Constitution of India. Any action taken by the employer against an employee must be fair, just and reasonable which are the components of fair treatment.

It is well-settled that where any statute or the rule is silent in providing an opportunity to show cause, even in administrative matters, which adversely affect the right of a person, the administrative action can be quashed for the reason that it is violative of Article 14 of the Constitution of India, but such rule can be protected, if the Court read into such rules the principle of natural justice.

In the present case the appellant was appointed against a clear vacancy but later on the conditions of his services was altered unilaterally. Without putting the appellant to notice, his services were treated as stop-gap arrangement and later on the appellant was disengaged from service. The doctrine of audi alteram partem demands that before altering the conditions of the service, the appellant ought to have been put to notice to show cause as to why his service conditions be not changed and the same was not done and treating the petitioner''s appointment as a sort of stop-gap arrangement, the appellant services were dispensed with.

No doubt in certain cases where a person obtains an appointment on the basis of fraud, misrepresentation or concealment of facts, the principle of audi alteram partem may not be available to him. Even if the order of appointment is void or non-est, it will amount to nullity, and the Court in such a situation need not read the principle of natural justice for the procedural safeguards, But a person has been appointed by a person who was not competent to pass such an order and allowed him to continue for certain period and, thereafter, his services were terminated, it cannot be said that the order is void till the appellant is put to notice to show-cause that he was appointed by a person who was authorised to appoint.

A similar situation arose in Shrawan Kumar Jha and others Vs. State of Bihar and others, , wherein it was held that they were not valid appointees and their services were rightly terminated.

Considering the facts and circumstances of the case, Hon''ble Supreme Court was of the view that the appellants should have been given an opportunity of hearing before cancelling the appointments. Admittedly, no such opportunity was afforded to team. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. Hon''ble Supreme Court set aside the impugned order of cancellation dated 3.11.88 on this short ground alone.

Hon''ble Supreme Court further directed the Secretary (Education) Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and, thereafter, give a finding as to whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined there schools and worked, they shall be entitled to their salary for such period.

In similar facts circumstances in Basudeo Tiwary Vs. Sido Kanhu University and Others, , where the services of the appellant was terminated on the ground that on 24.1.86, it indicated that syndicate had no power to make appointment of the lecturer and, therefore, his appointment was not lawful, the Hon''ble Supreme Court observed that the edict of Article 14 of the Constitution of India in which the principle of natural justice was ingrained had not been followed and allowed the appeal and quashed the order of termination from service.

In view of the legal position as observed in foregoing paragraph we are definitely of the view that Hon''ble the Single Judge without considering the amplitude and ramifications of Article 14 of the Constitution of India was dealt with the case in a cursory and mechanical manner. The sweep of Article 14 of the Constitution of India in the recent years has been reached to such an extent that every administrative action, which suffers from arbitrariness, violation of principle of natural justice, unfairness, unjustness and unreasonableness can be quashed by the Court.

In the instant case before altering the service conditions of the appellant the appellant must have been given a show-cause notice and only after providing an opportunity to show-cause a decision can be taken. Assuming thereby that a person who has appointed the appellant, was not authorised to pass such an appointment order even then it was incumbent upon the authority concerned, before disengaging the appellant from service that he should have given an opportunity to the appellant to show-cause against the same.

It is settled by various pronouncements of Hon''ble Supreme Court that if an order of appointment is passed, it reaches to the department and, thereafter, to the person concerned and the person concerned on the basis of the appointment order joins the post, then without giving him a show-cause notice such appointment cannot be set at nought.

In view of the aforesaid situation, we set aside the order passed by the Hon''ble Single Judge as well a quash the orders dated 3.6.96, 8.8.96 and 23.12.96 and issue a command to the respondents to put the appellant to notice and after giving a reasonable notice to show-cause and, thereafter, take a decision in the matter. Although the appellant will be paid full salary for the period which he had worked but he would not be reinstated in service till a final decision is taken by the authorities concerned.