TMI Blog2018 (3) TMI 1971X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the respondent, it has been asserted that such prior approval is not the quintessence for issuing a letter of appointment - for the time being, that the then Director Incharge H.S. Rathore, Agriculture Officer had the authority to issue a letter of appointment. Nevertheless, he could do so only upon obtaining prior written approval of the competent authority. No case has been made out in the Original Application that due approval was granted by the competent authority before issue of the letter of appointment to the respondent. Thus, it is indisputable that no prior approval of the competent authority was given for the appointment of the respondent. Whether the appointment letter issued to the respondent, would be a case of nullity or a mere irregularity? - HELD THAT:- If it is a case of nullity, affording opportunity to the incumbent would be a mere formality and non-grant of opportunity may not vitiate the final decision of termination of his services. The Tribunal has rightly held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reeding Farms (CCBF), Suratgarh, who was purportedly authorised only to look after the current duties of the post of Director. The appointment was made in November 1999 on a provisional and temporary basis, pursuant 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs viz. Director of the Farm, Senior-most Technical Officer and one Government Officer of Central/State Government. However, the selection process and interview in the present case were conducted by the Board unilaterally constituted by the said 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t herein. The Tribunal noted thus: 11. It is not in dispute that till his ad hoc appointment as Director, Regional Station for Forage Production and Demonstration, Suratgarh, Shri HS. Rathore, was only posted as Agriculture Officer, CCBF, Suratgarh. This 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 conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s approval and went ahead and offered appointments to these applicants. This raise a serious doubt about the motive behind the haste on the part of Shri Rathore, in appointing these applicants. The plea now taken on his behalf that such approval was not required 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t neither issued any notice nor provide any opportunity of hearing to the petitioner before passing order dated 29.08.2004. The only reason for terminating his services is that appointment was made without approval of the competent authority; meaning thereby, for contesting 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that no opportunity was given to the respondent before issuing the same. Relying on the exposition in the cases of Kendriya Vidyalaya Sangathan (supra) and State of Manipur and Ors. Vs. Y. Token Singh and Ors. (2007) 5 SCC 65, it is contended that giving prior opportunity 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 appointme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hittle down the indefeasible right enured to him. Further, deprivation of opportunity of hearing before passing the termination order was fatal as the said order entailed civil consequences to him. The respondent prays for dismissal of the appeal. 14. We have heard the learned counsels for 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 Bree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fold the unilateral constitution of the selection Board (not in accordance with the prescribed constitution of the selection Board) and also H.S. Rathore nominating himself as the Chairman of such Board, although disqualified to be on the Board because the candidate was related to him. As a result, 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, hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision- making authority. De Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and executive instructions in that regard. 24. Further, the High Court could not have interfered with the subject office order solely on the ground that it was issued without affording an opportunity to the respondent. The other reason which had weighed with the High Court, in our opinion, will be of no avail to the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the matter including whether the selection process has been properly followed in all respects. That would include the question such as whether the then Director Incharge could have constituted the Board of seven members, contrary to the established norms and moreso to act as Chairman of such a Board after full knowledge that the candidate appearing for the interview was his relative. 28. We have no hesitation in concluding that in the fact situation of the present case, giving opportunity of hearing to the respondent before issuance of the subject office order was not an essential requirement and it would be an exercise in futility. For the view that we have taken, the exposition in D.K. Yadav (supra), which commended to the High Court, in our opinion, has no application to the fact situation of the present case concerning an appointment which is void ab initio and nullity. 29. Accordingly, we set aside the impugned judgment and order of the High Court and restore the judgment of the Central Administrative Tribunal dated 06.06.2002, dismissing the Original Application filed by the respondent. 30. The appeal succeeds in the above terms with no order as to costs. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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