Allahabad High Court
Mahendra Nath Singh vs The Joint Director (Child Disease) & ... on 2 January, 2018
Bench: Sudhir Agarwal, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- SPECIAL APPEAL No. - 452 of 2011 Appellant :- Mahendra Nath Singh Respondent :- The Joint Director (Child Disease) and others Counsel for Appellant :- Arvind Kumar Mishra, A.N. Tripathi, R.P. Mishra Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal, J.
Hon'ble Shashi Kant, J.
1. Heard Sri A.N. Tripathi, learned Senior Advocate, assisted by Sri R.P. Mishra, Advocate, for appellant and learned Standing Counsel for respondents.
2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from judgment dated 02.02.2011 passed by learned Single Judge dismissing appellant's Writ Petition No. 18744 of 1989.
3. The facts in brief are that appellant was a Ward Boy working in Hospital at Taihar Kushun Deopur, Azamgarh. He made an application on 17.01.1988 before Joint Director (Bal Rog), Medical Health and Family Welfare, U.P. Lucknow (hereinafter referred to as "J.D.") stating that some new districts have been created wherein he should be given promotion as a Clerk since he has passed Intermediate with Science and knows Typing. Thereupon it appears that a letter was issued by J.D. on 20.12.1988 and pursuant thereto Chief Medical Officer Mau/Azamgarh (hereinafter referred to as "CMO") passed order on 14.03.1989 promoting petitioner on the post of Junior Clerk in the scale of Rs. 354-550 on temporary basis. Subsequently order of promotion was cancelled vide order dated 17.03.1989. Thereagainst writ petition was filed which has been dismissed by learned Single Judge.
4. Learned Senior Advocate contended that judgment in question is bad inasmuch similar order was set aside by another learned Single Judge in Civil Misc. Writ Petition No. 14933 of 1989 (Ram Jeet Yadav Vs. Chief Medical Officer, Azamgarh and others) decided on 05.12.2001, hence learned Single Judge was bound by the said judgment and could not have dismissed writ petition of appellant by taking a different view. He further contended that learned Single Judge, if wanted to disagree with the view taken by another Single Judge in another matter, only remedy available was to refer the matter to Larger Bench and he could not have taken a different view in the matter on its own. He further contended that once promotion is given, it could not have been cancelled without affording opportunity to appellant and therefore order cancelling appellant's promotion is in utter violation of principles of natural justice. Lastly he submitted that law is well settled that reasons given in an order have to be considered and no reason can be supplied either by way of counter affidavit or otherwise and if civil rights are affected, principles of natural justice have to be followed. In support of above submissions, he placed reliance on Mahadeolal Kanodia Vs. The Administrator-general of West Bengal AIR 1960 SC 936, Bir Bajrang Kumar Vs. State of Bihar and others AIR 1987 SC 1345, Vishwamitra Yadav Vs. U.P. State Public Service Tribunal and others (1998) 1 UPLBEC 23 and Shyamu Vs. State of U.P. and others (2010) 3 UPLBEC 2376.
5. Learned counsel for appellant could not place any separate Rules which would have governed procedure of promotion of a Ward Boy to Class III post working in the Office of Chief Medical Officer. When questioned he stated that procedure of promotion is governed by various Government Orders (hereinafter referred to as "G.Os.") issued from time to time and placed reliance on G.Os. dated 01.01.1970, 31.08.1982 and 03.09.1995.
6. Learned Standing Counsel per contra submitted that alleged promotion of appellant as Junior Clerk was patently void ab-initio since neither procedure for promotion on a Class-III post was followed nor appellant as a Ward Boy was in the field of eligibility and zone of consideration for such promotion, hence had no right either to such promoted post to hold it or to claim salary and that is why said patently illegal order was cancelled by order dated 17.03.1989. Learned Single Judge has rightly dismissed the writ petition and appellant is not entitled for any relief.
7. We have considered rival submissions at length and have also perused the relevant authorities on the subject.
8. The dispute in the present case relates to the year 1988-89 when appellant claim to have been promoted as Junior Clerk, a Ministerial Cadre. Recruitment to Ministerial Staff in the Subordinate Offices in 1985 and onwards was governed by Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 (hereinafter referred to as "Rules, 1985") which came to be published on 16.03.1985. Rule-2 provides application of said Rules and reads as under:
"2. Application of these rules. (1) These rules shall govern recruitment to all the ministerial posts of the lowest grade, other than the posts of stenographer (which are required to be filled by direct recruitment and which are outside the purview of the Public Service Commission) in all subordinate offices under the control of the Government excluding the Uttar Pradesh Secretariat, the offices of State Legislature, Lokayukt, Public Service Commission, High Court the Subordinate Courts under the Control and superintendence of the High Court, the Advocate General, Uttar Pradesh and of the establishments under the control of the Advocate General.
(2) Recruitment against all the vacancies of ministerial posts to which these rules apply shall be made in accordance with the provisions of these rules." (emphasis added)
9. Rule-3 gives overriding effect to Rules, 1985 and reads as under:
"3. Effect of inconsistency with other rules.- In the event of any inconsistency between these rules and any specific service rules:
(i) the provisions contained in these rules shall prevail to the extent of the inconsistency in case the specific rules were made prior to the commencement of these rules; and
(ii) the provisions contained in the specific rules shall prevail in case they are made after the commencement of these rules."
(emphasis added)
10. Rule-6 provides for source of recruitment and reads as under:
"6. Source of Recruitment.- Recruitment to the lowest grade in the ministerial staff in a subordinate office shall be made by direct recruitment through the Selection Committee referred in Rule 17 on the basis of academic and other attainments as provided in Rule 9:
Provided that up to 15 per cent of the vacancies in a particular subordinate office may be filled by the appointing authority by promotion from amongst High Schools pass Group D employees of that office in accordance with the orders of Government issued from time to time."
(emphasis added)
11. Therefore, as per proviso to Rule-6, 15 per cent vacancies in a subordinate office may be filled in, by appointing authority, by promotion from amongst High Schools pass Group D employees of that office in accordance with orders of Government issued from time to time. It is in this reference, aforesaid G.Os. dated 01.01.1970, 31.08.1982 and 03.09.1995 stand attracted.
12. In the present case, since the promotion was made in 1988-89 therefore, G.Os. dated 01.01.1970 and 31.08.1982 held the field and we propose to consider the same. Procedure prescribed in G.O. dated 01.01.1970 reads as under:
^^dze la0&1 mRrj izns'k 'kklu fu;qfDr ¼[k½ foHkkx la[;k 37&1&69&fu;qfDr ¼[k½ y[kuÅ] fnukad 1 tuojh] 1970 dk;kZy;&Kki fo"k;&oxZ 4 ds deZpkfj;ksa ds fy, oxZ 3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa vkj{k.kA 'kklu us ;g fu.kZ; fy;k gS fd fdlh dk;kZy; esa izR;sd o"kZ oxZ 3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa gksus okyh LFkk;h ,oa ,d o"kZ ls vf/kd vof/k rd pyrh jgus okyh vLFkk;h fjfDr;ksa esa oxZ 4 ds gkbZ Ldwy vFkok mlds led{k ekU;rk izkIr ijh{kk ikl LFkk;h deZpkfj;ksa ds fy,] ftudh vk;q 45 o"kZ ls vf/kd u gks] inksUufr }kjk nl izfr'kr vkj{k.k iznku fd;k tk;sxkA ,slh inksUufr ds fufeRr oxZ 3 ds inksa ij HkrhZ ftl dk;kZy; esa gksuh gks mlh dk;kZy; esa dke djus okys oxZ 4 ds deZpkfj;ksa ds ekeyksa esa fopkj fd;k tk;sxkA fdUrq ;fn fdlh ftys esa dksbZ u, dk;kZy; dks [kksyk tk; rks ml dk;kZy; es oxZ 3 ds fuEure Js.kh ds 10 izfr'kr inksa ij HkrhZ ds fy, mifjfyf[kr 'krksZa ds v/khu oxZ 4 ds lHkh LFkkuh; deZpkfj;ksa ds ekeys esa fopkj fd;k tk;sxkA fjfdR;ksa ds de gksus dh n'kk esa inksUufr dk dze ;g jgsxk fd izR;sd 9 fu;qfDr;ksa ds ckn ,d fu;qfDr inksUufr }kjk dh tk;sxhA 2- vkjf{kr fjfDr;ksa ds fy, pquko Js"Brk ds vk/kkj ij ,d lk/kkj.k ijh{kk ysdj rFkk lk{kkRdkj djds fd;k tk;sxkA ijh{kk esa dsoy ,d iz'u&i= gksxk ftles nks loky gksaxs&,d fdlh ljy fo"k; ij fgUnh fuca/k vkSj nwljk lkekU; KkuA pquko ds fy, dqy 50 vad gksaxs] ftudk fooj.k fuEufyf[kr gS& ¼d½ fyf[kr ijh{kk --- 30 vad ¼izR;sd iz'u ds 15 vad½ ¼[k½ lk{kkRdkj --- 10 vad ¼x½ pfj= iath ---- 10 vad dqy 50 vad tgka dsoy Vadd ¼VkbZfiLVksa½ ds laoxZ esa gh HkrhZ dh tkuh gks] ogkWa ij Vkbi dh Hkh ijh{kk yh tk;sxhA 3- ;g vkns'k efU=ifj"kn~ dh Lohd`fr ls tkjh fd, tk jgs gSaA vr% orZeku fu;eksa esa] ;fn dksbZ gksa] eaf+=ifj"kn~ dh iqu% Lohd`fr fy, fcuk rn~uqlkj la'kks/ku dj fy;k tk;A v'kksdj dqekj eqLrQh vk;qDr ,oa lfpoA** "Serial No. 1 Government of Uttar Pradesh Niyukti (Kha) Vibhag No. 37-1-69-Niyukti (Kha) Lucknow, dated: 1st January, 1970 OFFICE MEMORANDUM Subject: Reservation for Class-IV employees in the lowest category of Class-III clerical posts.
It has been decided by the government that in the permanent vacancies or the temporary vacancies likely to continue for more than a year, occurring each year in any office in the lowest category of Class-III Clerical posts, 10% reservation shall be given by way of promotion to the permanent employees having passed High School or any examination recognised to be equivalent thereto and not being above 45 years of age. Class-IV Employees of the same office shall be considered for promotion where recruitments to Class-III posts are to take place. But if any new office is opened in any district, all the Class-IV local employees shall be considered for recruitments to 10% posts of the lowest category of Class-III in that office subject to the afore-mentioned conditions. In case of vacancies being a few, promotion shall be such that after every 9 appointments, one appointment shall be made by way of promotion.
2. For reserved vacancies, selection shall be made on the basis of merit by holding an ordinary examination and interview. In the examination, there shall be just one paper having two questions - one shall be a Hindi essay on any simple subject and the other one, general knowledge. For the purpose of selection, there shall be total 50 marks breakup whereof is as under:
A) Written Examination : 30 Marks (15 marks for every question) B) Interview : 10 Marks C) Character Roll : 10 Marks Where recruitments are to take place in the cadre of typists, a type test shall also be taken there.
3. These orders are being issued with the approval of the cabinet. Hence, amendments in the existing rules, if any, be accordingly made without further approval of the cabinet.
Ashok Kumar Mustafi Commissioner and Secretary"
(English Translation by Court)
13. A perusal of aforesaid G.O. makes it clear that promotion to Class-III from Class-IV is founded on a written test, interview and assessment of service record of concerned Class-IV employee.
14. Another G.O. was issued on 21.08.1976 which reads as under:
^^dze la[;k&2 la[;k 37@1@1969&dkfeZd&2 dkfeZd vuqHkkx ¼2½ y[kuÅ] fnukad 21 vxLr] 1976 fo"k;&oxZ&4 ds deZpkfj;ksa ds fy, oxZ&3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa vkj{k.kA egksn;] eq>s vkidk /;ku dk;kZy; Kki la[;k 37@1@1969&fu;qfDr ¼[k½] fnukad 1 tuojh] 1970 dh vksj vkd`"V djus dk funsZ'k gqvk gS ftlesa ;g funsZ'k izlkfjr fd;s x;s Fks fd fdlh dk;kZy; esa izR;sd o"kZ oxZ&3 ds fuEure Js.kh ds fyfid oxhZ; inksa esa gksus okyh LFkk;h ,oa ,d o"kZ ls vf/kd vof/k rd pyrh jgus okyh vLFkk;h fjfDr;ksa esa oxZ&4 ds gkbZ Ldwy vFkok mlds led{k ekU;rk izkIr ijh{kk ikl LFkk;h deZpkfj;ksa ds fy, ftudh vk;q 45 o"kZ ls vf/kd u gks] inksUufr }kjk nl izfr'kr vkj{k.k iznku fd;k tk;sxkA mijksDr vkns'kksa dk vkaf'kd la'kks/ku djrs gq, vc 'kklu us ;g fu.kZ; fy;k gS fd ftl deZpkjh us prqFkZ Js.kh ds in ij ikap o"kZ rd fujUrj lsok dj yh gks] pkgs og LFkk;h gks vFkok vLFkk;h] fyfid oxhZ; fuEure Js.kh ds inksa ij inksUufr ikus ds fy, vgZ gksxk ;fn og gkbZ Ldwy vFkok mlds led{k dksbZ vU; ijh{kk mRrh.kZ gks rFkk 45 o"kZ ls vf/kd vk;q dk u gksA vk;qDr ,oa lfpoA** "Serial No. 2 No. 37/1/1969/Kaarmik-2 Karmik Anubhag (2) Lucknow, dated: 21st August, 1976 Subject: Reservation for Class-IV employees in the lowest category of Class-III clerical posts Sir, I have been directed to draw your attention towards Office Memorandum No. 37/1/1969-Niyukti(Kha), dated 1st January, 1970 circulating a direction that in the permanent vacancies or the temporary vacancies likely to continue for more than a year, occurring each year in any office in the lowest category of Class-III clerical posts, 10% reservation shall be given by way of promotion to the permanent employees having passed High School or any examination recognised to be equivalent thereto and not being above 45 years of age. By partially modifying the aforesaid orders, the government has now decided that an employee who has completed 5 years of continuous service on Class-IV post, whether he/she is permanent or temporary, shall be eligible for being promoted to a clerical post of the lowest category, if he/she has passed High School or any other examination equivalent thereto and has not exceeded the age of 45.
Commissioner & Secretary"
(English Translation by Court)
15. Thus, G.O. dated 21.08.1976 only had effect of amending G.O. dated 01.01.1970 to the extent that all Class-IV employees, who have rendered five years service, whether permanent or temporary, would be eligible to be considered for promotion to Class-III vacancies provided he has passed High School or any equivalent examination and not above 45 years.
16. Then third G.O. was issued on 19.05.1979 modifying order dated 21.08.1976 and limitation for promotion with respect to age was taken away.
17. Then G.O. dated 31.08.1982 was issued enhancing quota for promotion from 10 per cent to 15 per cent but process of selection for promotion continued to include written test, interview and assessment of service record. G.O. dated 31.08.1982 is quoted as under:
^^dze la[;k&3 la[;k 37@1@1969&dkfeZd&2 dkfeZd vuqHkkx&2 y[kuÅ fnukad 31 vxLr 1982 bZ0 fo"k;&oxZ&4 ¼vc lewg ^?k*½ ds deZpkfj;ksa ds fy, oxZ&3 ¼vc lewg ^x*½ ds fuEure Js.kh ds fyfidh; inksa esa vkj{k.kA egksn;] mi;qZDr fo"k;d lela[;d 'kklukns'kksa] fnukad 1 tuojh] 1970] 21 vxLr]1976 o 19 ebZ] 1979 ds lUnHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd bl izdj.k ij f}rh; osru vk;ksx dh fjiksVZ esa dh xbZ laLrqfr dks /;ku esa j[krs gq, leqfpr :i ls fopkjksijkUr 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd oxZ&4 ds fy, oxZ 3 ds fuEure Js.kh ds fyfidh; inksa esa vkj{k.k dh la[;k 10 izfr'kr ls c<+kdj 15 izfr'kr dj nh tk;A vr,o mDr 'kklukns'kksa ds izkfo/kkuksa dks lek;ksftr djrs gq, bl izdj.k esa v|of/kd fLFkfr fuEuor~ gksxh& izR;sd o"kZ oxZ&3 ds fuEure js.kh ds fyfidh; inksa esa gksus okyh LFkk;h ,oa ,d o"kZ ls vf/kd vof/k rd pyrh jgus okyh vLFkk;h fjfDr;ksa esa oxZ&4 ds gkbZ Ldwy vFkok mlds led{k ekU;rk izkIr ijh{kk ikl ,sls LFkk;h@ vLFkk;h deZpkfj;ksa ds fy, ftUgksaus prqFkZ Js.kh ds in ij ikap o"kZ dh fujUrj lsok dj yh gks] inksUufr }kjk 15 izfr'kr dk vkj{k.k iznku fd;k tk;sxkA ,slh inksUufr ds fufeRr oxZ&3 ds inks ij HkrhZ ftl dk;kZy; esa gksuh gks mlh dk;kZy; esa dke djus okys oxZ&4 ds deZpkfj;ksa ds ekeyksa ij fopkj fd;k tk;sxk] ijUrq ;fn fdlh ftys esa dksbZ u;k dk;kZy; [kksyk tk; rks ml dk;kZy; esa oxZ&3 ds fuEure Js.kh ds fyfidh; inksa esa ls 15 izfr'kr inksa ij HkrhZ ds fy, mfYyf[kr 'krksZa ds v/khu oxZ&4 ds lHkh LFkkuh; deZpkfj;ksa ds ekeys esa fopkj fd;k tk;sxkA vkjf{kr fjfDr;ksa ds fy, pquko Js"Brk ds vk/kkj ij ,d lk/kkj.k ijh{kk ysdj rFkk lk{kkRdkj djds fd;k tk;sxkA ijh{kk esa dsoy ,d iz'u&i= gksxk ftlesa nks loky gksaxs] ,d fdlh ljy fo"k; ij fgUnh fucU/k vkSj nwljk lkekU; KkuA pquko vadksa dk fooj.k fuEuor~ gS%& ¼d½ fyf[kr ijh{kk --- 30 vad ¼izR;sd iz'u ds 15 vad½ ¼[k½ lk{kkRdkj --- 10 vad ¼x½ pfj= iath ---- 10 vad dqy ----- 50 vad tgka dsoy Vadd ¼VkbZfiLVksa½ ds laoxZ esa gh HkrhZ dh tkuh gks] ogkWa ij Vkbi dh Hkh ijh{kk yh tk;sxhA 3- d`i;k mDr vkns'kksa dk vuqikyu lqfuf'pr fd;k tk; rFkk orZeku fu;eksa esa] f;n dksbZ gksa] rn~uqlkj la'kks/ku djus ij fopkj dj fy;k tk; ,oa vko';d dk;Zokgh lqfuf'pr dh tk;A** "Serial No. 3 No.37/01/1969-Personnel-2 Personnel Section-02 Lucknow: Dated: 31 August, 1982 Subject: Reservation for Class-IV employees (now Group D) in the lowest category of clerical posts in Class-III ( now Group C).
Sir, With reference to even numbered Government Orders dated 1st Jan, 1970, 21st August, 1976 and 19th May, 1979 on the above-mentioned subject; I am directed to say that after due consideration of the recommendations made, in the instant matter, by the Second Pay Commission report, it has been decided by the Government that the reservation for Class-IV employees in the lowest category of class-III clerical posts be enhanced from 10 percent to 15 percent.
Assimilating the provisions of the aforesaid Government Orders, the updated status in the instant matter shall be as under:
In the permanent vacancies occurring in the lowest category of class-III clerical posts and in the temporary vacancies running for more than one year, 15 percent reservation shall be given by way of promotion to those permanent and temporary employees who have successfully passed High School or any examination recognised equivalent thereto and have completed continuous service of five years on a Class - IV post. For these promotions, the cases of the Class-IV employees of that very office shall be considered where the recruitments to the Class-III posts are to take place; but if a new office is being opened in any district, the cases of all local Class-IV employees, subject to the aforesaid conditions, shall be considered for the recruitment to 15 percent of the lowest category clerical posts of that office. Selections to the vacant posts shall be made on the merit basis by holding an ordinary examination and interview. For the examination, there will be only one paper containing two questions wherein one question will be essay writing in Hindi on a simple subject, and the other one, general knowledge. The break-up of the selection marks is as under:
A. Written Examination - 30 marks (15 marks for each question) B. Interview - 10 marks C. Character Role - 10 marks Total - 50 marks Where recruitments are to take place only in the typists' cadre, a type test will also be conducted.
2. The compliance of the aforesaid orders may kindly be ensured; and accordingly, amendment in the existing rules, if any, be considered, and necessary action be ensured."
(English Translation by Court)
18. The aforesaid G.Os. read with Rules, 1985 make it very clear that for promotion of a Group-D employee to the extent of 15 per cent vacancies reserved in Class-III, selection has to be made on the basis of a written test, interview and assessment of character roll.
19. In the present case, it could not disputed by learned Senior Counsel appearing for appellant that no such procedure for selection and appointment was observed at all.
20. From record, it is evident that appellant, who was a Ward Boy, submitted an application on 17.01.1988 and thereupon itself a letter was issued on 14.03.1989 by CMO promoting appellant on a Class-III post, i.e., Junior Clerk in the scale of Rs. 354-550/-. The illegality in the aforesaid promotion was soon realized and promotion order was cancelled within 3 days, i.e., on 17.03.1989.
21. Learned counsel for appellant having failed to justify the order of promotion, since process of selection provided in the relevant G.Os. read with proviso to Rule 6 of Rules, 1985 was not followed, argued, since appellant was promoted, order of cancellation of promotion visits civil consequences, therefore, the same could not have been cancelled without observing principles of natural justice and a show Cause Notice ought to have been given to appellant.
22. Law is well settled that an order, if administrative or quasi judicial, results in adverse civil consequences to person concerned, there must be compliance of principles of natural justice. In this regard we may refer to Supreme Court's judgment in State of Orissa Vs. Dr. (Miss) Binapanni Dei and others 1967 AIR 1269 wherein Court said:
"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, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State."
23. In Bhagwan Shukla Vs. Union of India & others AIR 1994 SC 2480 Court held:
"... fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter."
24. However, it is also well established that principles of natural justice cannot be put in a straight jacket formula and there are certain circumstances particularly when the facts are not in dispute wherein non compliance of principles of natural justice will not vitiate administrative or quasi judicial order and/or High Court in exercise of writ jurisdiction may not interfere. One of such exception to the application of principles of natural justice is where only one conclusion is possible. In the present case, it is evident from record that very promotion of appellant as Junior Clerk was illegal, hence this Court, while exercising power under Article 226 of the Constitution, is not bound to interfere since observance of principles of natural justice is not an empty formality. Where only one conclusion is possible, this Court can decline to interfere in exercise of power under Article 226 of the Constitution.
25. In Karnataka State Road Transport Corporation and another Vs. S.G. Kotturappa AIR 2005 SC 1933, Court held:
"The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criterias required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with...". (emphasis added)
26. In Punjab National Bank and others Vs. Manjeet Singh and another AIR 2007 SC 262, Court said:
"The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice."
(emphasis added)
27. In P.D. Agrawal Vs. State Bank of India and others (2006) 8 SCC 776, it has been observed by Apex Court:
"The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets."
28. This Court also in Writ Petition No. 31995 of 2000 (Ganesh Singh Vs. District Magistrate & others) decided on 29.4.2011 has held as under:
"16. The principles of natural justice cannot be kept in a straight jacket formula. They apply in the facts and circumstances of each and every case. If the appointment of petitioner would have been made in accordance with law or at least some prima facie material would have to be placed to show what has been stated by respondents is not ex facie correct, then the matter may have required some further investigation. In the case in hand no such thing has been placed on record by petitioner or even pleadings to show that procedure prescribed under 1974 Rules was observed and thereafter petitioner was appointed. The appointment, therefore, is ex facie illegal and in the teeth of the Rules.
17. In the circumstances, this Court under Article 226 of the Constitution do not find it a fit case warranting interference. The writ petition, therefore, lacks merit and is dismissed."
29. This Court also in Writ Petition No. 38893 of 2008 (Brijendra Singh Vs. State Of U.P. and Others) decided on 18.5.2011 has taken somewhat similar view as under:
"... it is well settled that if only one conclusion is possible, the Court would not interfere in the impugned order ...."
30. Another aspect we would like to mention here that even if an order may be held to be vitiated in law for violation of principles of natural justice, but if it results in revival of another illegal order, this Court will not exercise its jurisdiction for setting aside such an order under Article 226 of Constitution. Since no process of selection, provided under Rules for promotion from Class-IV to Class-III was observed, we have no manner of doubt to hold that promotion order dated 14.03.1989 was patently illegal. It has been cancelled within 3 days of its issue. Even if there was denial of principles of natural justice when order of promotion was cancelled by order dated 17.03.1989, but setting aside order dated 17.03.1989 would result in revival of another illegal order of promotion dated 14.03.1989, it is a fit case where this Court would be justified in declining to exercise its jurisdiction under Article 226 and must not interfere with the order impugned in writ petition. Thus, in our view learned Single Judge has declined to interfere by dismissing writ petition, rightly, though this exposition of law has not been stated therein.
31. In Champalal Binani Vs. The Commissioner of Income Tax West Bengal and others, AIR 1970 SC 645, Court while dealing with jurisdiction of the Court with respect to issuance of writ of certiorari held that "a writ of certiorari is discretionary, it is not issued merely because it is lawful to do so."
32. In Durga Prasad Vs. The Chief Controller of Imports and Exports & others, AIR 1970 SC 769 (para-7) and in Bombay Municipal Corporation for Greater Bombay vs. Advance Builders (India) Pvt. Ltd. AIR 1972 SC 793 (para-13) it was held that writ jurisdiction is discretionary and the Court is not bound to interfere even if there is error of law.
33. It would be appropriate to refer at this stage the view expressed in Municipal Board, Pratabgarh and another Vs. Mahendra Singh Chawla and others 1982(3) SCC 331 wherein it was held:
"........this Court is not bound to tilt at every approach found not in consonance or conformity with law. The interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its prestine glory. Having performed that duty under Article 136, it is obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136."
34. This Court in Writ Petition (Writ-A) No. 4740 of 1992 (Sita Ram and another Vs. District Magistrate and others) decided on 27.10.2017 in para-20 has said as under:
"20. What has been observed by the Apex Court with reference to Article 136 of the Constitutions, in our view would equally be applicable when this Court is required to exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India. In a given case, having set legal position straight, still this Court may decline to interfere where the equity justifies the same or where the fact and circumstances warrant that discretionary relief should be declined. Where interference with an illegal order may result in revival of another illegal order, the Court would be justified in refusing to interfere."
35. In Employees' State Insurance Corporation & ors V. Jardine Henderson Staff Association and others AIR 2006 SC 2767 Court held that relief in a writ of certiorari can be denied inter alia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal order. In para 62 of the judgment, Court clearly held that High Court under Article 226 and Apex Court under Article 136 read with 142 of the Constitution has power to mould the relief in the facts of the case.
36. In Ramnik Lal N. Bhutta and another vs. Vs. State of Maharashtra, AIR 1997 SC 1236, Court observed:
"The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point." (Para 10)
37. In State of H.P. Vs. Raja Mahendra Pal & others (1999) 4 SCC 43 in para 6 of the judgment Court held :
"............It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article............"
38. Similarly, in Director of Settlement Vs. M.R. Apparao (2002) 4 SCC 638 in para 17 Apex Court held that power vested in High Court under Article 226 of the Constitution is discretionary.
39. A Division Bench of this Court in Amarendra Singh Vs. State of U.P. 2008(1) ADJ 397 (DB)=2008(1)ESC 734 has held that since petitioner has invoked extraordinary jurisdiction under Article 226 of the Constitution, the remedy is not as a matter of right and this Court is not bound to interfere even if technically or otherwise the order impugned is found to be illegal or erroneous. There are certain exceptions which are well recognised and one of such exceptions is where setting aside of an order will result in revival of another illegal order.
40. In Amrendra Singh Vs. State of U.P. & Ors., 2008 (2) UPLBEC 60, this Court has declined to interfere in intra Court appeal with an order of Hon'ble Single Judge even though legally it was not sustainable since substantial justice has been done therein and setting aside of order may have resulted in revival of another pernicious order.
41. In Civil Misc. Writ Petition No. 5512 of 1992 (Krishna Chand Vs. District Magistrate, Maharajganj and others) (2010) 2 UPLBEC 1566, one Krishna Chand appointed as Class-IV employee vide order dated 13.01.1992 by the then D.D.O. challenged order dated 16.01.1992 passed by D.M. cancelling said appointment. Said writ petition came to be decided by a detailed judgment on 14.12.2010. Court took the view that once appointment has been found illegal it was rightly cancelled and that be so, no further benefit can be allowed to petitioners. Paragraphs 13, 22, 23, 24 of said judgment are reproduced as under:-
"13. In my view once it is evident that the appointment of petitioner was illegal and fraudulent, no question of indulgence granting any relief to petitioner would arise for the simple reason that fraud vitiates everything. If that is so, question of considering the order cancelling fraudulent order, whether having passed in accordance with law, may not be necessary to be considered since the very basis on which the appointment is claimed by an incumbent is a nullity in the eyes of law and once the very basis of the right of an incumbent goes, the subsequent order passed by the authority of mere declaration of such fraudulent order to be illegal would not confer any life to such fraudulent order if the subsequent order passed by the authority even if found to be not in accordance with law."
"22. It is well settled that where an order of appointment is wholly illegal and void ab initio, neither the principles of natural justice would be attracted in such a case nor any irregularity in the order passed by the authorities concerned declaring the fraudulent orders to be illegal would make it valid for any purpose whatsoever."
23. Even otherwise, the petitioner having invoked equitable extraordinary jurisdiction of this court under Article 226 of the Constitution cannot seek the revival of an illegal order by stressing that since the order cancelling such illegal order is in violation of principle of natural justice or without reason, therefore, this court is under an obligation to revive an illegal order of his appointment. It is well settled that this Court shall be justified in refusing to grant any indulgence in a case where setting aside of an order would result in revival of another illegal order.
24. In view of the above discussion, I find no merit in the writ petition. Dismissed. No costs." (emphasis added)
42. This matter was taken in intra Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Act, 1952") before a Division Bench of this Court by Krishna Chand in Special Appeal No. 788 of 2010 but the same was dismissed vide judgment dated 13.08.2015. The operative part of judgment of Division Bench reads as under:-
"Rules 19 provides that the appointing authority shall issue an advertisement in local daily newspaper besides pasting the notice for the same on the notice board. Admittedly, advertisement has not been made in the present case for the purpose of the appointment and therefore appointment of the appellant was not in accordance to the procedure provided in Rule 19. It would be appropriate to refer the Rule 32 which has been relied upon by the learned counsel for the appellant which reads as follows:
32. Relaxation from conditions of Service.- Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the Establishment causes undue hardship in any particular case, it may, notwithstanding anything contained, in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.
On perusal of Rule 32, it is clear for the relaxation of any conditions, it is necessary that there should be satisfaction of the State Government and specific order be passed dispensing with or relaxation the requirements of the rule. No order has been produced before us passed by the State Government in exercise of power under Rule 32, therefore, the argument of the learned counsel for the appellant that appointment made on recommendation was valid, has no substance.
In view of above, the appeal is devoid of any merit and is accordingly dismissed."
43. The matter was then taken to Supreme Court in Special Leave to Appeal (C) No. 31851 of 2015 (Krishna Chand Vs. District Magistrate, Maharajganj and others) but it was dismissed vide order dated 23.11.2015.
44. Learned counsel for appellant, at this stage, argued that in another matter, i.e., Ram Jeet Yadav Vs. Chief Medical Officer (supra), similar order passed by CMO was set aside by Learned Single Judge, hence a different view could not have been taken in another matter by another Single Judge and this is against judicial property inasmuch learned Single Judge, if wanted to take a different view in the matter, ought to have referred the matter to Larger Bench.
45. We have gone through the judgment dated 05.12.2001 in Ram Jeet Yadav Vs. Chief Medical Officer, Azamgarh and others (supra). Therein Ram Jeet Yadav was a Class-IV employee (Ward Boy) appointed on 27.07.1976. Some posts of Lower Division Clerk fell vacant in the Office of CMO, Azamgarh. A selection committee was constituted to make promotion on the post of Lower Division Clerk and after considering service record, selection committee recommended promotion of Ram Jeet Yadav on temporary basis on the post of Clerk and promotion order was issued on 06.05.1989. Ram Jeet Yadav joined the post of Clark at Primary Health Centre, Hyderabad, District Azamgarh and commenced to work as Clerk. Thereafter by order dated 11.05.1989 he was attached to Account Section of the Office of Deputy Chief Medical Officer, Sagari, Azamgarh. Later on, on 06.06.1989 order of cancellation of promotion was passed and Ram Jeet Yadav was reverted to his original post of Ward Boy and posted in Police Hospital, Azamgarh. Learned Single Judge held that said order of cancellation of promotion ought not to have been passed without giving a show cause notice to Ram Jeet Yadav, and, therefore, writ petition was allowed. Court declared that Ram Jeet Yadav shall be treated to have been validly promoted by order dated 06.05.1989 as Clerk and shall be given all consequential benefits. Learned Single Judge had not examined statutory rules and procedure prescribed for promotion from Class-IV to Class-III and their effect. The exposition of law, as we have discussed above, was not considered by learned Single Judge, though it has been discussed in detail by learned Single Judge in the case in hand. Thus it cannot be said that in exercise of jurisdiction under Article 226, Single Judge in Ram Jeet Yadav (supra) has laid down any law which has been disagreed by learned Single Judge in the case in hand so as to invite reference for taking a different view to Larger Bench. In Ram Jeet Yadav (supra), the issue about validity of promotion and circumstances in which Court may decline to interfere in writ jurisdiction have not been considered at all, and, therefore, the view taken by learned Single Judge in case in hand cannot be sad to be contrary to what has been decided in Ram Jeet Yadav (supra).
46. We may also notice at this stage a strange startling fact showing a fraud in the case in hand. Appellant was working as Ward Boy in Government Hospital, Taihar Kushun Deopur, District Azamgarh. He sought promotion on a post of Clerk created in another District Maunath Bhanjan. A Class-IV employee maintains his service benefits at District level and unless he is transferred to another District, he cannot claim any additional benefit including promotion in a vacancy caused in another District. In the present case CMO concerned was posted at Azamgarh, but since Mau was created as a new District, he was holding charge of Mau District also. He passed order of promotion against a post of Clerk in District Mau, though admittedly neither petitioner was posted in District Mau at all on Class-IV post, and, therefore, could not have been considered for promotion on a Class-III post in District Mau nor CMO, Mau would have passed such order. The order passed by CMO Azamgarh, therefore, was patently a nullity in the eyes of law.
47. The authorities cited by learned counsel for appellant in view of discussions made above do not help him at all since in the present case the very order of promotion having been passed in a wholly illegal manner without any selection as per relevant Rules had no legal consequences, and, therefore, the same was rightly cancelled and this Court in exercise of jurisdiction under Article 226 would not be justified in setting aside cancellation order only on the ground that same was passed without any show-cause notice to appellant since the facts are admitted and setting aside the cancellation order would result in revival of another illegal order of promotion of appellant. We, therefore, find no fault, legal or otherwise, in the order passed by learned single judge dismissing the writ petition.
48. The Appeal lacks merits. Dismissed.
Dt. 02.01.2018 PS