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TMI Blog2018 (3) TMI 1971X X X X Extracts X X X X X X X X Extracts X X X X ..... to the advertisement published in the newspaper on 15.10.1999. However, by an office order dated 29th August, 2000 issued under the signature of Dr. M.N. Haque, Director, the services of respondent came to be terminated. The said order reads thus: "Government of India Ministry of Agriculture Department of All & Dairying ..........Cattle Breeding Farm SURATGARH - 335 804 (Raj.) Dated the 29thAugust, 2000. OFFICE ORDER In compliance to Ministry's decision vide their letter No.8- 6/99-Admn.III dated 18thAugust, 2000, illegal appointment, of Shri Raghuwar Pal Singh S/o Shri Himat Singh Shekhawat to the post of Veterinary Compounder, made by the then Director Incharge Shri H.S. Rathore, agriculture Officer, without approval of the Competent Authority, vide this office order No. 14-62/99-CPS/1562 dated 24/30 November, 1999, is CANCELLED with immediate effect. Accordingly, his service stands terminated as per terms and conditions laid down in point v) & vi) of the offer of appointment letter no.5-17/96-99/CPS/1308 dated 16/22 November, 1999. (Dr. M.N. Haque) DIRECTOR." (emphasis supplied) 3. The respondent assailed the said order by filing Original Application No.206 of 2000 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d H.S. Rathore, consisting of seven members including himself, being Director Incharge. Further, he acted as the Chairman of the said Board. The Board consisted of the following members: "1) Shri H.S. Rathore, 1/C Director Chairman 2) Shri S.C. Aggarwal, Executive Member Engineer, Central State Farm (SFCI Ltd.) (Not a Central Govt. office) 3) Shri CS. Manohar, Asso. Professor Member Veterinary College, Bikaner (whereas a Veterinary Officer is already there in the office itself) 4) Shri R.L. Aswal, Asstt. Stn. Engineer Member All India Radio, Suratgarh 5) Dr. M.S. Rathore, Project Officer Member URMUL Dairy, Chhattargarh (Which is not a Central/State office) 6) Shri Baldev Singh, Agriculture Asstt. Member CCBF, Suratgarh (A Group 'C' employee) 7) Shri A. Narsingh, Technical Asst. member CCBF (A Group 'C' employee)" In other words, the said Board was not validly constituted. Furthermore, the respondent was the son of the younger brother- in-law of H.S. Rathore, the Director Incharge and Chairman of the Board. The Chairman of the Board had direct relation with and interest in the appointment of the respondent. It is then stated that as per the prescribed procedure, appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is apparent from the order dated 22.12.99 (Arin.A/10 of OA 204/2000). It is also admitted fact that by virtue of order dated 25.8.92 (Ann.A/6 to the same OA), Shri Rathore was ordered to look after the current charge of the post of Director, CCBF, Suratgarh. One Dr. B.S. Singh, was earlier posted as officiating Director and declared Head of office. After posting of Dr. Singh, no declaration was made in favour of Shri Rathore for his continuation as Head of Office. Applicants' contention is 'that since Dr. Singh, never took charge of the responsibilities of Director, CCBF, Suratgarh, Shri H.S. Rathore, continued to function as Head of the Office. By order dated 15.7.99 one Shri M.N. Haque, was posted as Director and ordered to take over charge of the post of Director, CCBF, Suratgarh, from Shri H.S. Rathore. This order was stayed by this Tribunal vide order dated 10.8.99, passed in OA 204/99. As a consequence, Shri Rathore continued to look after the current duties of the post of Director, CCBF, Suratgarh. 12. Now the question which arises for our consideration is whether an officer looking after the current duties of a post, could exercise the statutory power as vested in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no basis at all. This is more so, when the rules clearly provide that an officer looking after the current charge should not have exercised statutory powers of appointments. 14. These appointments are vitiated on other grounds also. The fact that all the three applicants are related to Shri Rathore, cannot be a mere co-incidence and reflects on the intention behind making these appointments. The ways the selection committee has been constituted by including even Group-C members, is indicative of the irregular practice knowingly adopted by Shri Rathore while making these appointments." (emphasis supplied) 7. The Tribunal then adverted to the legal position that any appointment made de hors the statutory rules has no validity and that those who come by the back door have to return by the same back door and cannot claim protection of principles of natural justice. For that, the Tribunal relied on the exposition of this Court in the case of Union of India & Ors. Vs. M. Bhaskaran (1995) Suppl. 4 SCC 100, State of U.P. & Ors. Vs. U.P. State Law Officers Association & Ors. (1994) 2 SCC 204 and Kendriya Vidyalaya Sangathan & Ors. Vs. Ajay Kumar Das & Ors. (2002) 4 SCC 503 and in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the matter before the Tribunal the grounds other than the basic ground were submitted before the Tribunal which were meant to be basis for terminating the services of the petitioner; meaning thereby, the grounds agitated before the Tribunal were altogether different than the reasons incorporated in the order Annex. - 4. In this view of the matter, we are of the opinion that order of termination suffers from arbitrariness and illegality, so also, passed against the principles of natural justice. We are unable to understand the reason incorporated in the reply filed by the respondents before the Tribunal because the reasons incorporated in the reply for terminating the service of the petitioner are not mentioned in the termination order." 9. The High Court then adverted to the decision of D.K. Yadav Vs. J.M.A. Industries Ltd. (1993) 3 SCC 259 and the decision of the Division Bench of the same High Court in the case of Bhupal Singh Vs. State of Rajasthan (1988) 2 RLW 428. Thereafter, the High Court concluded as follows: "Upon assessment of the termination order, we are of the opinion that the Tribunal has committed gross error while dismissing the original application filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the respondent before issuing the subject office order was not obligatory; and no fruitful purpose would have been served by giving such notice. The High Court, therefore, was manifestly wrong. It is submitted that prior approval of the competent authority is the quintessence for issuing a valid and legal appointment order. Whereas, appointment order issued in favour of the respondent being void ab initio, the competent authority was duty bound to take corrective and remedial action in the matter. That brooked no delay. 12. It is also submitted that the High Court mainly recorded three aspects to interfere with the impugned office order. First, that the office order does not state that the Director Incharge was not competent to issue the appointment letter. Additionally, there is no tittle of indication in the said order that the appointing authority committed any illegality in making appointment. Second, the reason for termination of services of respondent was not made known to him by issuing a notice or by providing him an opportunity of hearing. Third, the Tribunal took extraneous facts into account to uphold the subject office order, by adverting to grounds not referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or appellants Mr. A.K. Panda, Senior Advocate, Mrs. C.K. Sucharita, Mr. Shailender Saini, Mr. Raj Bahadur and Mr. D.S. Mahra, and Dr. Manish Singhvi, Mr. Shailja Nanda Mishra, Mr. Satyendra Kumar, Mr. Yuvraj Simant and Mr. Irshad Ahmad, learned counsels for respondent. 15. Reverting to the subject office order, we are in agreement with the stand taken by the appellant that the same is a simpliciter termination and is no reflection on the conduct of the respondent. It merely explicates that his appointment was illegal having been made by the then Director Incharge H.S. Rathore, Agriculture Officer and without prior approval of the competent authority. No more and no less. 16. We shall now consider the efficacy of the reason so recorded in the office order. The recruitment procedure in relation to the post of Veterinary Compounder is governed by the statutory rules titled 'Central Cattle Breeding Farms (Class III and Class IV posts) Recruitment Rules, 1969, as amended from time to time and including the executive instructions issued in that behalf. As per the stated dispensation for such recruitment, the appointment letter could be issued only by an authorised officer and after gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ministry took holistic decision on 18.08.2000 at the highest level after reckoning all aspects of the matter including that it was not just a solitary appointment of the respondent, but also other appointment letters issued by H.S. Rathore under his signature. All such appointments have been nullified by the Ministry in the same manner in addition to initiating departmental action against H.S. Rathore. Tersely put, all appointments made by H.S. Rathore came under the scanner as being fraudulent and without authority. Such appointments would obviously be a nullity in law. 19. The Tribunal had justly relied on the exposition in the cases of M. Bhaskaran (supra) and in particular, Kendriya Vidyalaya Sangathan (supra). In the latter case, in paragraph 5 of the reported decision, while dealing with a similar situation, the Court observed that if the appointment letters are nullity, having been issued by an officer who did not wield authority to do so, there was no question of observance of principles of natural justice even though the affected party was not before the Court. 20. In the case of State of Manipur (supra), the appointment letters were cancelled on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a 'real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their 'discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala Vs. S.K. Sharma (1996) 3 SCC 364, Rajendra Singh Vs. State of M.P. (1996) 5 SCC 460 that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact situation of the present case. To wit, the fact that the subject office order does not attribute any motives to the then Director Incharge, can be no basis to invalidate the same. In our opinion, the office order records just and tangible reason as to why the appointment of the respondent is illegal. Unless the core reason mentioned in the subject office order was found to be untenable, the High Court could not have concluded that the subject office order was vitiated merely because it was issued without notice or lack of opportunity to the respondent. Similarly, the fact that the Tribunal has taken note of other grounds urged by the parties (other than the reason noted in the subject office order), per se, cannot be the basis to invalidate the subject office order which is otherwise just and proper. The High Court could have ignored those other reasons/grounds taken into account by the Tribunal. 25. Reverting to the decisions relied upon by the respondent, we fail to understand as to how the decision in the case of The Remington Rand of India Ltd. (supra) will be of any avail to the respondent. In that case, the Court was called upon to consider the effect of not publishin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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