UPENDRA NATH Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri J. N. Varma Counsel for the petitioner and the learned Standing Counsel.

(2.) This writ petition has been filed challenging the order dated 31.3.1997 passed by the respondent No. 4 by which the appointment of the petitioner on a class III post has been cancelled. Petitioner was appointed by Chief Medical Superintendent by the appointment order dated 26.10.1995 on a Class III post of Registration-cum-Record Keeper. In the order dated 31.3.1997 it has been stated that the Chief Medical Superintendent is not the appointing authority of class III post. Counter affidavit has been filed in which it has been stated that the appointments made by Dr. O.S. Singh, Chief Medical Superintendent on 26.10.1995 were contrary to rules. On 26.10.1995 Dr. 0. S. Singh has made appointment of three employees on class III posts and 21 on class IV posts. Counter affidavit in detail gives the various irregularities committed in the appointment. Counsel for the petitioner submitted that the order dated 13.3.1997 is illegal since it was passed without opportunity to the petitioner. After having heard Counsel for the petitioner and the respondents it is clear from the record that the petitioner was appointed on a Class III post by the Chief Medical Superintendent Dr. 0. S. Singh vide appointment order dated 26.10.1995. In the counter-affidavit it has been stated that the appointing authority of class III employees is not the Chief Medical Superintendent. In paragraph 3-B it is stated that another class III employee Sri Rakesh Kumar who was appointed by Dr. O. S. Singh has filed writ petition No. 14583 of 1997 challenging the similar order dated 13.3.1997. The writ petition was dismissed by the learned Single Judge on 28.4.1997. Against the order dated 28.4.1997 a Special Appeal No. 386 of 1997, Rakesh Kumar v. State of U.P. was filed. The aforesaid Special Appeal has been dismissed on 29.5.1997. The Division Bench passed the following order while dismissing the special appeal of Rakesh Kumar: "Heard learned Counsel for the appellant. This appeal is directed against the order dated 28th April, 1997 by which Civil Misc. Writ Petition No. 14583 of 1997 has been dismissed. Appellant has challenged the order dated 31.3.1997 in the aforesaid writ petition by which he has been terminated from service on various grounds. One of the grounds mentioned is that the post on which the petitioner was appointed is within the purview of the U.P. Subordinate Services Selection Commission and the appointment can be made only on the recommendation of the Commission. Learned Counsel for the appellant has however, relied in the case of Shravan Kumar Jha and Ors. v. State of Bihar and Ors., AIR 1991 SC 309, and has submitted that before passing the impugned order petitioner ought to have been given an opportunity of hearing. In our opinion, the opportunity of hearing could only be required to be given when the appointment is not void ab initio. In the present case as already stated above, the appointment can only be made on the recommendations made by the Commission. The appointment of the appellant was void from the very beginning. For the reasons stated above the order passed by the learned Single Judge does not suffer from any illegality calling for interference. The appeal is accordingly, rejected."

(3.) That similarly controversy pertaining to cancellation of appointment of class III employees by the same authority on the basis of the same allegations having been decided by the Division Bench on 29.5.1997, the present writ petition is also liable to be dismissed in view of the Division Bench judgment as quoted above. The Division Bench has held that since the appointment was void ab initio opportunity of hearing is not required. The reasons for holding the appointment void ab initio was that the power to make appointment of Class III post is vested in U.P. Subordinate Services Selection Commission and the Chief Medical Superintendent could not have made appointment on class III post. A class IV employee whose appointment was cancelled by order dated 31.3.1997 also filed writ petition No. 15150 of 3997 in which judgment had been delivered today allowing the writ petition and quashing the order dated 31.3.1997 on the ground that the said order was passed without notice, but the case of a class III is entirely different form a class IV employee. The appointing authority of class IV employee is Chief Medical Superintendent hence appointment made on class IV post cannot be said to be void ab initio. In view of the above discussion the present writ petition has no merit and is dismissed.