STATE OF UTTAR PRADESH Vs. RAMADHAR RAM

JUDGEMENT

(1.) Cynosure of attention in the instant appeal is the judgment and order dated 11.2.1998 whereby the learned single Judge has allowed the writ petition and quashed the order dated 16.10.1984 passed by the Inspector General of Registration. U.P., which contained the direction to the District Registrar, Azamgarh to rescind the selection of the petitioners-respondents and the consequential order dated 14.12.1984 passed by the District Registrar, Azamgarh thereby terminating the services of the petitioners-respondents.

(2.) The facts of the case draped in brevity and beyond the pale of controversy are that the petitioners were selected for appointment pursuant to the written test held on 3.12.1981 followed by interview held on 13.12.1981. Appointment orders were duly issued in favour of the petitioner-respondents on varied dates as delineated in the judgment under challenge. The Inspector General of Registration. U. P., by his order dated 16.10.1984 directed the District Registrar to cancel the selection of the petitioners on the alleged ground that the selections were made in antagonism of the provisions engrafted in Rule 16 of the Subordinate Officers Ministerial Staff (Direct Recruitment) (4th Amendment) Rules, 1979 and also on the premises that the interview that followed the written test was besmirched with irregularities. The learned single Judge held that the petitioner respondents were appointed by the Competent Authority studded with the approval of the Head of the Department. i.e., the Inspector General of Registration, U. P. and in pursuance of the appointment orders issued in their favour, the petitioner- respondents were allowed to join their duties on different dates between January and April. 1982 and all of them endured in service for about 2- 1/2 years when the impugned orders dated 16.12,1984 and 14.12.1984 came to be passed. The learned single Judge held that the impugned orders were passed without affording opportunity of hearing to the petitioner-respondents and further that they have already put in about 18 years of service and during this long span of about two decades of service, when the entire complexion of their families must have undergone a complete transition. It would be "nothing but an act of cruelty" to ask them to go out of the employment. The learned Standing Counsel appearing for the appellants canvassed that since selection process and consequent appointments of the respondents were marred by bungling, the learned Single Judge was not justified in allowing the writ petition on the ground that no opportunity of hearing was afforded to the petitioner- respondents in that, submitted the learned standing counsel, in the fact situation of the case, no opportunity of hearing commended itself to be given to the petitioner respondents. The submission made by the learned standing counsel is wide off the mark. The validity of an order adversely affecting a public servant may be tested on the touchstone of Articles 14, 16, 21 and 311 of the Constitution and statutory provisions, if there be any, regulating the service conditions. It is a settled proposition of law that audi alteram partem rule of natural justice operates tn a field not otherwise covered by statutory provisions and is regarded as a facet of Article 14 of the Constitution. In Basudeo Tiwari a. Sido Kanhu University and others, JT 1998 SC 464, the Supreme Court was in seisin of the question regarding applicability of audi alteram partem rule in the context of the provisions contained in Section 35 (3) of the Bihar Universities Act, 1970, which enabled the Competent Authority to terminate sons notice any appointment or the promotions made contrary to the provisions of the Act. Statute, Rules and Regulations or made in irregular and unauthorised manner. The appointment of the appellant therein was terminated on the ground that on the relevant date, the Syndicate had no power to make appointment on the post of lecturer. No opportunity was afforded to the appellant therein before terminating his appointment. The writ petition challenging the order of termination met the fate of dismissal by the Patna High Court. Reliance was placed by the High Court on the provisions contained in Section 35 (3) of the Bihar Universities Act. 1970. The Supreme Court allowed the appeal and set aside the order passed by the Patna High Court as well as the impugned order terminating service of the appellant therein holding, inter alia, as under: "(9) the law Is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of Slate action governed by Article 14. It has come to be established as a further corollary. that the audi alteram partem facet of natural justice is also a requirement of Article 14 for natural justice Is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee Is antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corporation v. D. T. C. Mazdoor Congress, JT 1990 (3) SC 725. (10) In order to impose procedural safeguards this Court has read the requirement of natural justice in situations when the statute is silent on this point. The approach of this Court in this regard is that omission to impose the hearing requirement in the statute under which the impugned action is being taken does not exclude hearing--it may be implied from the nature of the power--particularly when the right of a party is affected adversely. The justification for reading such a requirement is that the Court merely supplies omission of the Legislatures, Vide Mohiinder Singh Gill and another v. Chief Election Commissioner and others. AIR 1978 SC 851 and except in case of direct legislative negation or implied exclusion. Vide S. L. Kapoor v. Jagmohan and others, AIR 1981 SC 136. ***** (12) The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, Statutes. Rules or Regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules. Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act. Statutes, Rules or Regulations etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry the person whose appointment is under enquiry will have to be issued (a noticed) to him. If notice is not given to him, then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such as proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair and reasonable as noticed by this Court in D.T.C. Mazdoor Sabha's case. In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, Statute, Rule or Regulations etc. and it is only on such a conclusion being drawn, the services of the person couid be terminated without further notice....."

(3.) In a society governed by rule of law, every citizen including a public servant legitimately expects that on issues touching his life and liberty, the State and its instrumentalities shall deal him with in consonance with the principles of just, fair and reasonable governance of State affairs. In fact, reasonableness and fair-play in State action are regarded as a facet of right to equality before law and equal protection of law guaranteed by Article 14 and right to life and personal liberty guaranteed by Article 21 of the Constitution. Termination of services of a public servant in utter disregard of his legitimate expectations aforestated may, in appropriate cases, be taken to be denial of rights guaranteed by Articles 14, 16, 21 and 311 of the Constitution.