TMI Blog2013 (5) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... sement dated 13.8.1998 issued by the Uttar Pradesh Higher Education Service Commission (for short, 'the Commission') for recruitment of Principals for Post Graduate Degree Colleges and Degree Colleges (Aided and Unaided), the Appellants submitted their respective applications for the posts for which they were qualified. They were selected by the Commission and their names were included in the select list published on 16/18.4.2001. 3. The Director, Higher Education, U.P. (for short, 'the Director') issued orders for placement of the Appellants in the position of Principals of various Colleges. In some cases, the Management of the concerned Colleges did not issue orders appointing the Appellants. In other cases, the Appellants either voluntarily sought change of the placement or the Director suo motu changed the placement. After joining their respective positions, most of the Appellants were confirmed by the Management of the concerned Colleges. 4. On receipt of complaints alleging large scale irregularities in the placement of selected candidates in different Colleges, the State Government directed District Magistrate, Allahabad to conduct an inquiry and submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Commission Act, 1980 and being wrongly explained the order passed in Alka Rani Gupta case dated 27.02.2003 and by violating the order passed by the Hon'ble Supreme Court in Civil Appeal No. 7904/1996 titled as Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and Ors. The appointment of Dr. Tomar to the provisions of U.P. Higher Education Act, and order passed by the Hon'ble Supreme Court, this decision had been taken after proper discussion in the light of provisions of the Act, under Section 12(1) that the appointment of Dr. Mahipal Singh Tamar, as Principal Dev Nagri College, Gulaothi, Bulandshahr should be terminated. Therefore, in the compliance of above Govt. letter No. 3009/70-2-2005-06 (14)/2003 dated 29.07.2005, Dr. Mahipal Singh Tamar Principal Dev Nagri College, Gulaothi, Bulandshahr, appointed as Principal vide letter dated 10.04.2003 of the Directorate of Higher Education is being cancelled with immediate effect, you are directed to terminate the appointment of Dr. Tamar as Principal with immediate effect, which is contrary to the provisions of the Act, 1980 and against the above order of the Hon'ble Supreme Court and inform the Directorate about the acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o direct termination of their services, the action taken by him and the consequential orders passed by the Management of the Colleges are liable to be quashed on the ground of violation of the rules of natural justice. 9. In the affidavits filed on behalf of the Respondents, every possible justification was offered to support the action taken by the State Government and the Director, but it was not disputed that copy of the report prepared by the District Magistrate was not supplied to any of the Appellants and none of them was given opportunity to show cause against the proposed cancellation of his/her placement as Principal and termination of service. 10. The Division Bench of the High Court referred to the provisions of the 1973 Act and the 1980 Act (as amended) and the judgment of the Full Bench in Dr. Vinay Kumar v. Director of Education (Higher), Allahabad 2005 (4) ESC 2953, which had considered the correctness of the proposition of law laid down by the Division Benches in Dr. Prakash Chandra Srivastava v. Director of Higher Education, Allahabad 2002 (5) ESC 2202 and Alka Rani Gupta (Km.) v. Director of Education (Higher) 2003 (2) ESC 942 and another judgment of the Div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also remind ourselves of what was observed by the Full Bench of this Court in Dr. Vinay Kumar (supra) and by the Division Bench in Rama Shanker Rai (supra) that the Director does not have a discretion to intimate the name of a candidate to the management dehorse the provisions of Section 13 of the Act and that he has necessarily to see the merit position of the candidate and the preference given by the candidate for the Colleges. The Director did initially issue the placement orders but they were cancelled. The subsequent placement order of the Director dated 12th January, 2004 ignores the essential and relevant criterion for placement and the Petitioner has been recommended for a College for which even advertisement had not been issued. Even in the absence of Section 12(1) of the Act, we would have had no difficulty in holding that the appointment of the Petitioner is void, being contrary to the statutory provisions. In this connection reference needs to be made to the decision of the Supreme Court in Pramod Kumar v. U.P. Secondary Education Services Commission and Ors. (2008) 7 SCC 153. It was held that any appointment which is contrary to the Statute/statutory rules is voi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment. She also stated that there was a vacancy in C.M.P. Degree College, Allahabad and the said College had no objection if she was appointed. She, therefore, prayed that she be appointed in C.M.P. Degree College, Allahabad. The prayer was rejected by the Director on the ground that a new list had been prepared in March, 2003 pursuant to Advertisement No. 32 and she had been selected under Advertisement No. 29 which list was valid only till the new list was prepared. This led to the filing of the writ petition by Nidhi Khanna which was allowed by the High Court and a direction was issued to the authorities to appoint her as Lecturer in C.M.P. Degree College, Allahabad. The State of U.P. filed Special Leave Petition in the Supreme Court. The Supreme Court set aside the directions of the High Court holding that such directions were contrary to the statutory provisions and the decision of the Supreme Court in Kamlesh Kumar Sharma (supra). It was observed that the earlier list prepared under Advertisement No. 29 came to an end when the new list was prepared under Advertisement No. 32. The observations of the Supreme Court are: 14. In our opinion, in view of the above legal positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red opinion, could not have issued a writ of Mandamus directing the Authorities to act contrary to law. That is not the ambit and scope of writ of Mandamus. 11. The Division Bench finally relied upon the judgments of this Court in Ashok Kumar Sonkar v. Union of India (2007) 4 SCC 54, State of Manipur v. Y. Token Singh (2007) 5 SCC 65 and Mohd. Sartaj v. State of UP. (2006) 2 SCC 315 and negatived the Appellants' plea that the decision taken by the State Government and the consequential actions taken by the Director and the Managements of the Colleges were violative of the rules of natural justice. 12. We have heard Learned Counsel for the parties and scanned the records of ail the appeals. Since there is no dispute between the parties that copy of the report prepared by the District Magistrate was not supplied to any of the Appellants and no action oriented notice or opportunity of hearing was given to them proposing cancellation of their placement as Principals and termination of their services, there is no escape from the conclusion that the decision taken by the State Government and consequential actions taken by the Director and the Management of the Colleges were nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 15. The rule of audi alteram partem was recognised in R. v. University of Cambridge (1723) 1 Str. 557. In that case, the University of Cambridge had deprived Bentley, a scholar, of his degrees on account of his misconduct in insulting the Vice-Chancellor's Court. The action of the University was nullified by the Court of King's Bench on the ground that deprivation was unjustified and, in any case, he should have been given notice so that he could make his defence. In that case, it was noted that the first hearing in human history was given in the Garden of Eden, in the following words: I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam', says God, 'where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldn't not eat?' And the same question was put to Eve also . 16. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the nature of judicial proceedings. Willes, J. said: I am of the same opinion, I apprehend that a tribunal which is by law invested with power to affect the property of one of Her Majesty's subject, is bound to give such subject an opportunity of being heard before it proceeds: and that the rule is of universal application, and founded on the plainest principles of justice. How, is the board in the present case such a tribunal? I apprehend it cle arly is.... Byles, J. said: It seems to me that the board are wrong whether they acted judicially or ministerially. I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so, a long course of decisions beginning with Dr. Bentley's case, and ending with some very recent cases, establish that, although there are no positive words in a statute, requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. 18. The same principles were applied in Smith v. R. (1878) 3 AC 614 involving cancellation of a Crown lease and in Queensland Hall v. Manchester Cpn. (1915) 84 LJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance, but I think it would have been a wise precaution on the part of the Minister when he received those further, communications from the Council pressing for the confirmation of the order to communicate those letters or verbal persuasions to the other side, the objectors, and ask whether they had anything further to say on the matter. The Ministry were acting in a quasi-judicial capacity they were doing what a semi-judicial body cannot do, namely, hearing evidence from one side in the absence of the other side, and viewing the property and forming their own views about the property without giving the owners of the property the opportunity of arguing that the views which the Ministry were inclined to take were such as could be readily dealt with by means of repairs and alterations to the buildings. 21. Similar view was expressed by the House of Lords in Fairmount Investments Ltd. v. Secretary of State for the Environment (1976) 2 All E.R. 865. 22. In Ridge v. Baldwin and Ors. (1964) AC 40, the Chief Constable of Brighton had been tried and acquitted on a criminal charge of conspiracy to obstruct the course of justice. Two other police officers were convicted, and the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting officer was in possession of a report of inquiry which was not made available to the concerned officer. While holding that the rules of natural justice have been violated, Lord Denning observed: If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. 26. In Shareef v. Commissioner for Registration of Indian and Pakistani Residents (1966) AC 47, a decision of the Industrial Injuries Commissioner was set aside because he had relied on some report which was not available to the parties and no opportunity was given to them to offer their comment on the report before the decision was taken. 27. The question whether even in the absence of statutory provisions requiring compliance of natural justice, the Court could invoke those principles was answered in Wiseman v. Borneman (1971) AC 297 in the following words: For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial power.... 29. In State of Orissa v. Dr. (Miss.) Binapani Dei AIR 1967 SC 1269, this Court observed: We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first Respondent of the case of the State.... 30. In Sayeedur Rehman v. The State of Bihar and Ors. AIR 1973 SC 239, this Court while considering the challenge to the decision of the Board of Secondary Education, which had reviewed its earlier order granting salary and allowances to the Appellant, reversed the order passed by the Patna High Court and held: This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. AIR 1978 SC 851, a Constitution Bench observed that: Fair hearing is a postulate of decision making, cancelling a poll, although a fair abridgment of that process is permissible. It can be fair without the rules of evidence or form of trial. It cannot be fair if apprising the affected and appraising the representatives is absent.' The philosophy behind natural justice is, in no sense, participatory justice in the process of democratic rule of law. The silence of a statute has no exclusionary effect except where it flows from necessary implication. 34. In Union of India v. Tulsi Ram Patel AIR 1985 SC 1416, the Constitution Bench, speaking through Madon, J., considered the various facets of the principles of natural justice and application of the same in the context of Article 14 and observed that the principles of natural justice are not the creation of Article 14, Article 14 is not their begetter but their constitutional guardian. The principles of natural justice apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rruption without giving opportunity of hearing to the selected candidates. The Appellants in that case had been selected for appointment to the Punjab Civil Service (Judicial Branch). On receipt of the complaints that there were large scale irregularities in the process of selection, the High Court recommended to the State Government that the entire selection may be cancelled. The State Government accepted the recommendations of the High Court and cancelled the selection. The affected candidates, some of whom had already been appointed against the vacant posts, challenged the decision of the High Court and the State Government. A three Judge Bench of the High Court dismissed the writ petitions. This Court reversed the order of the High Court and held that the selection could not have been cancelled without giving notice and opportunity of hearing to the affected candidates. In his judgment, S.B. Singh, J. extensively referred to the factual matrix of the case and observed: If the services of the appointees who had put in few years of service were terminated, compliance with three principles at the hands of the State was imperative viz. (1) to establish satisfaction in regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termination of their services as a consequence of cancellation of selection would not only prejudice their interests seriously, but would ruin their entire future career. The facts of this case reveal that the material supplied to the Committee having regard to the fact that majority of the officers named in the FIR belonged to 2001 batch, the Respondents not only cancelled the entire selection of 2001 batch, but on the basis of the cancellation of selections of 2001 batch the entire process of 1999 and 2002 selections was also cancelled. It is also relevant to mention that the selection process for the year 1998 was not the subject-matter nor any recommendation had been made by the Committee, even then the selections of this year were also vitiated. The High Court Committee without there being sufficient and adequate material on record recommended cancellation of selections of both the executive and judicial officers and the Full Bench erred in accepting the recommendation and terminating the services of all the officers. A close scrutiny of the facts of this case clearly reveals that the judicial officers did not get a fair treatment by the High Court. They were not given copi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case, the Government, instead of discharging its obligation, unjustly resorted to the cancellation of all the allotments en masse by treating unequals as equals without even prima facie examining their cases. Those officers whose services were affected because of en masse cancellation have not been given an opportunity to represent before the authorities concerned. In Onkar Lal Bajaj there were 413 cases and the task was indeed difficult to segregate the cases of political connection and patronage with other cases. But, even then, this Court, while setting aside the order of the Government cancelling the allotment, appointed a committee of two retired Judges, one of this Court and another from the Delhi High Court, and they were requested to examine all 413 cases and decide the matter after getting the report from that committee appointed by the Court. While following the ratio of the said case, in the facts and circumstances of the case, we deem it appropriate to set aside the order of the Respondents cancelling the en masse selections and direct the Respondents to examine each case separately on its merits and submit a report to this Court. 40. In Onkar Lal Bajaj v. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd larger public interest, except contending that as a result of media exposure, the Government in public interest decided to cancel all allotments, nothing tangible was brought to our notice. On 5-8-2002 the only reason was that a controversy had been raised. In the order dated 9-8-2002 the reasons given are that facts and circumstances considered and to ensure fair play in action and in public interest, it was passed. In the counter-affidavit, the aspect of probity in governance has been brought in. Be that as it may, the fact remains that admittedly, no case was examined, not even from a prima facie angle to find out whether there was any substance in the media exposure. None examined the impact that was likely to result because of en masse cancellation. Many had resigned their jobs. It was necessary because of such a stipulation in LOI. Many had taken huge loans. There were many Scheduled Castes/Scheduled Tribes, war widows and those whose near relation had died as a result of terrorist activities. The effect of none was considered. How could all those large number against whom there was not even insinuation be clubbed with the handful of those who were said to have been allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the findings recorded by the District Magistrate, who had prepared the report by looking at one side of the coin. He did not give opportunity to any of the Appellants to represent his/her cause or explain his/her position. Not only this, he did not confront any of the Appellants with the adverse material produced before him. Therefore, the report of the District Magistrate could not have been relied upon by the State Government for directing cancellation of the placement of the Appellants in the particular Colleges and the Director committed grave illegality by mandating the termination of their services. 42. The three judgments relied upon by the High Court for rejecting the Appellants' contention on the issue of violation of the rule of audi alteram partem are clearly distinguishable. In all the cases, this Court had found that the appointments of the Appellants were contrary to law and the constitutional code of equality. It was also found that the Appellants did not fulfil the conditions of eligibility. In the background of the factual matrix of those cases, this Court upheld the action taken by the employer to terminate the services of the Appellants. On a factual plane ..... X X X X Extracts X X X X X X X X Extracts X X X X
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