Telangana High Court
V. Jaya Rani, vs Union Of India on 7 March, 2025
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION No.17279 of 2024
ORDER:(per Hon'ble Sri Justice Laxmi Narayana Alishetty) This Writ Petition is filed aggrieved by the order dated 08.04.2024 passed by the Central Administrative Tribunal, Hyderabad Bench (for short 'the Tribunal') in OA.No.1415 of 2015.
2. Heard Sri Kirthi Teja Kondaveeti, learned counsel for the petitioner, Sri Akhileshwar, learned counsel representing Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India, appearing for respondents.
3. The facts of the case, in nutshell, are that the respondents have issued a notification dated 30.11.2011 calling for applications to the post of Lower Division Clerks (LDC) for a period of one year, which is extendable on yearly basis upon satisfactory performance of the candidates; that the petitioner has applied for the said post and after undergoing the selection process, she was appointed as LDC on 03.04.2012 on contract basis for a period of AKS,J & LNA,J WP No.17279 of 2024 2 one year and she joined duty on 09.04.2012; and that the services of the petitioner were extended from time to time by the respondents till the year 2015.
4. Subsequently, the petitioner was appointed as LDC in regular cadre by the respondents vide proceedings dated 02.03.2015 against the vacancy earmarked for SC candidate, as she belonged to SC category.
5. Upon inquiry, respondent No.1 directed respondent No.2 to cancel the appointments made to the posts of LDC with immediate effect and respondent No.2 vide proceedings dated 06.10.2015 cancelled the appointment order dated 02.03.2015 of the petitioner on the ground that there were irregularities in her appointment to the said post, however, the respondents allowed the petitioner, if willing, to continue in the post of LDC on temporary basis with consolidated pay till the regular process to fill up the vacant posts of LDC is completed and the petitioner submitted the joining report on 07.10.2015.
6. Aggrieved by the order of cancellation, dated 06.10.2015, to the regular post of LDC, the petitioner has filed OA.No.1415 of 2015 before the Tribunal and the Tribunal dismissed the said AKS,J & LNA,J WP No.17279 of 2024 3 application vide order dated 08.04.2024, on the ground that selection to the regular post of LDC was not made in accordance with the Recruitment Rules and approvals. Challenging the said order of the Tribunal, the petitioner has filed the present Writ Petition.
7. Learned counsel for the petitioner submitted that the impugned order of the Tribunal is ex facie illegal as the Tribunal ought to have considered that there was no information given to the petitioner with regard to the inquiry being conducted and the same was conducted behind the back. Learned counsel also contended that the petitioner has continued in the regular service of LDC for a period of seven months, and the order of cancellation is not in accordance with the law governing the termination of regular employees. He further contended that principles of natural justice are violated since no notice had been issued to the petitioner and she was not afforded an opportunity of hearing before passing the cancellation order dated 06.10.2015 and the law is well-settled that if any adverse orders are passed without giving notice or an opportunity of being heard, the same is illegal and unsustainable AKS,J & LNA,J WP No.17279 of 2024 4 and accordingly, he prayed this Court to set aside the cancellation order.
8. Learned counsel for the petitioner further contended that the cancellation orders issued by the respondents do not disclose any fraud or misconduct on the part of the petitioner while being appointed nor raised any question as regards the ineligibility of the petitioner to the regular post of LDC.
9. Learned counsel for the petitioner further contended that as on April, 2022, the petitioner has completed ten (10) years of service with the respondents and hence, she is entitled to absorption into regular service in view of the continuous service. He further contended that the petitioner belongs to SC category and hence, she is entitled to be absorbed into regular services under the said category with all consequential benefits.
10. Per contra, learned counsel for the respondents submits that the Tribunal has rightly dismissed the OA filed by the petitioner on the ground that process of selection to the regular post of LDC was not made in accordance with the Recruitment Rules. He further submitted that after regularization was made, complaints were received by respondent No.1 regarding regularization of services AKS,J & LNA,J WP No.17279 of 2024 5 of four persons to the post of LDC, which includes the case of the petitioner, and hence, an inquiry was ordered by respondent No.1 and in the inquiry, it was found that regularization was made against the rules, and no prior permission for such regularization was obtained from the ICMR headquarters and as such, the initial appointment of the petitioner itself is in clear violation of due procedure contemplated.
11. Learned counsel for the respondents further submitted that in the inquiry, it was also found that no selection committee was formed, no written test/interview/typing test was conducted and the appointments were made only through writing some notes on file. Based on the said inquiry report, an Office Memorandum was issued cancelling the appointments issued to four LDCs, which includes that of the petitioner, and an option was given to the petitioner to continue in the post on contract basis till completion of regular process to fill up the vacant posts of LDCs.
12. Learned counsel for the respondents further contended that the cancellation order was passed solely basing on the inquiry, wherein violation of Rules regarding selection and appointment of the petitioner, including three others, was made by the Department AKS,J & LNA,J WP No.17279 of 2024 6 officials and as such, the question of issuance of notice and an opportunity of hearing given to the petitioner does not arise. Learned counsel further contended that the services of the petitioner were regularized without obtaining permission from respondent No.1, who is the competent authority, and hence, the question of issuing notice does not arise. It is further contended that no guidelines were issued by the respondents for absorption into regular service after a temporary employee completes ten years of service and finally, he submitted that the present Writ Petition, being devoid of any merits, is liable to be dismissed. CONSIDERATION:
13. From the above factual matrix of the case and the material placed on record, it is evident that the appointment of the petitioner, along with three others, was questioned by one- K.Mallesh by filing OA.No.442 of 2015 before the Tribunal, projecting various infirmities in the selection process and that in obedience of the order of the Tribunal to inquire into the process of selection, respondent No.1 constituted a committee comprising of two members to inquire into the said aspect and on enquiry, the said committee submitted report dated 11.09.2015 holding that AKS,J & LNA,J WP No.17279 of 2024 7 there are various irregularities in the appointment of the petitioner, including violation of the Recruitment Rules; that no prior permission for such appointment was obtained from the ICMR Headquarters, which is clear violation of the procedure; and that no selection committee was formed, no written test/interview/typing test was conducted, and the appointments were made only through writing some notes on file.
14. Taking into consideration the findings in the inquiry report, an Office Memorandum dated 28.9.2015/01.10.2015 was issued by respondent No.1 cancelling the appointment orders issued to four LDCs, which includes the petitioner, with immediate effect. Hence, as rightly observed by the Tribunal, the question of violation of the principles of natural justice and no notice being issued does not arise as the appointment for the regular post was in violation of the procedure contemplated under the Recruitment Rules, 2013.
15. It is evident from the cancellation order dated 06.10.2015, and the office memorandum dated 28.09.2015/01.10.2015 that the cancellation of appointment of the petitioner for the regular post of LDC was solely due to the irregularity and violation of the AKS,J & LNA,J WP No.17279 of 2024 8 Recruitment Rules by the respondents and the conduct of the petitioner was not in question.
16. It is also evident from the inquiry report that the practice employed and procedure for the said appointment to the regular posts were made following an irregular procedure, and though there was no shortage of LDCs, the petitioner, along with three others, was given unnecessary age relaxation while being appointed. It is also pertinent to note that after issuance of cancellation order dated 06.10.2015, the petitioner has voluntarily joined the service on temporary basis, therefore, the question of threat or force does not arise. Hence, as rightly observed by the Tribunal, if a procedure is adopted for selection that has been in practice previously, it is necessary to follow the said practice by taking necessary permission and all the requisite approvals from the competent authorities before initiating the process of selection. Therefore, the appointments made without prior approval of the competent authority or against the statutory rules have no validity and amounts to nullity and hence, there is no necessity to follow the principles of natural justice when the appointments are made by way of irregular procedure.
AKS,J & LNA,J WP No.17279 of 2024 9
17. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in State of Orissa Vs. Dr.(Miss) Binapani Dei 1, wherein it is held that administrative orders that involve civil consequences have to be passed consistently following the principles of natural justice. The said principle was also followed in Mahipal Singh Tomar v. State of U.P 2.
18. The principle laid down in the said cases is not applicable to the present case because in the said cases, the authorities who made the appointments were competent and have obtained the requisite permissions to make the appointments, but, there were irregularities in the process of selection. However, in the instant case, as per the inquiry report, various irregularities were found in the selection process of LDCs and it was found that no prior permission or requisite approvals were obtained by the authority for making such appointments.
19. In Union of India v. Raghuwar Pal Singh, 3 wherein a person was appointed to the post of veterinary compounder by an incompetent authority, that too, without obtaining the required 1 AIR 1967 SC 1269 2 (2013) 16 SCC 771.
3 (2018) 15 SCC 463 AKS,J & LNA,J WP No.17279 of 2024 10 permissions and also not following the established procedure, the Hon'ble Supreme Court terminated the said appointment without issuing a notice or opportunity to be heard to the employee therein, by holding as hereunder:-
"18. 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.
...
20. ...No case has been made out in the original application that due approval was granted by the competent authority before issuance 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. In such a case, the next logical issue that arises for consideration is: whether the appointment letter issued to the respondent, would be a case of nullity or a mere irregularity? 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 act of commission and omission of the then Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law. ...
25. ... as the letter of appointment has been issued by an officer who had no authority to do so and also because it was issued without waiting for the approval of the competent authority. Resultantly, there was no necessity to AKS,J & LNA,J WP No.17279 of 2024 11 afford opportunity to the respondent before issuing the letter of cancellation of such appointment. The mere fact that such letter of appointment had been issued in favour of the respondent does not bestow any right in his favour much less to insist for an opportunity of being heard. ...
31. ...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."
20. The above judgment of the Hon'ble Supreme Court will apply proprio vigore to the present case, as the appointment of the petitioner was made without any prior permission and approvals from the competent authorities and by way of an irregular procedure. Consequently, there is no necessity to afford an opportunity of being heard to the petitioner before passing the cancellation order dated 06.10.2015.
21. The Constitutional Bench of the Hon'ble Supreme Court in State of Karnataka v. Umadevi 4, by upholding the constitutional scheme of public employment, whose hallmark is the equality of opportunity, held that the Supreme Court and the High Courts should not issue any direction unless the recruitment itself was made regularly and in terms of the constitutional scheme; if not, it 4 (2006) 4 SCC 1 AKS,J & LNA,J WP No.17279 of 2024 12 would violate the equality of opportunity enshrined in Articles 14 and 16 of the Constitution of India and emphasized that wide powers of High Court under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment and its role as the sentinel and as the guardian of equal rights protection should not be forgotten. It was further held that it would not be proper for the constitutional courts to pass an order in the exercise of jurisdiction under Articles 226 or 32 or 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law, and though it would be open to this Court to mould the relief, this Court would not grant a relief that would amount to perpetuating an illegality.
22. Therefore, applying the above principle to the present case, this Court is of the considered view that it would not be just to validate the irregular appointment order of the petitioner to the regular post of LDC.
AKS,J & LNA,J WP No.17279 of 2024 13
23. Learned counsel for the petitioner raised one more contention that upon completion of ten years of continuous service of the petitioner with the respondents, her services have to be regularized.
24. On perusal of the notification 30.11.2011 issued by respondent No.2 for filling the post of LDCs, it is evident that there is no specification with regard to regularization of services of a temporary employee upon completion of ten years of service. The initial appointment order issued to the petitioner also does not specify anything with regard to regularization after completion of ten years of service. Further, it is pertinent to note that the ICMR Recruitment Rules for Administrative Posts do not provide for regularization of services of an employee after working on temporary basis for a period of 10 years.
25. Further, it is apt to note that based on the said inquiry report, an Office Memorandum was issued cancelling the appointments issued to four LDCs, which includes that of the petitioner, and an option was given to the petitioner to continue in the post on contract basis till completion of regular process to fill AKS,J & LNA,J WP No.17279 of 2024 14 up the vacant posts of LDCs and the petitioner has accepted to continue in the post on contract basis.
26. In this context, it is relevant to refer to judgment of the Hon'ble Supreme Court in Umadevi's case (cited supra), wherein it is held as hereunder:
" We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the court, in appropriate cases, would have only the right to regularise an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent."
27. It is pertinent to note that the Recruitment Rules, 2013, of the respondents in the present case do not provide for automatic regularization of temporary appointment after a period of ten years and in fact, the selection is through departmental examination. Therefore, this Court is of the considered view that a direction for appointment of the petitioner to the regular post of LDC cannot be given on the ground that she has completed ten years of service with the respondents.
AKS,J & LNA,J WP No.17279 of 2024 15 CONCLUSION:
28. In view of the above discussion, this Court is of the considered view that the Tribunal was justified in dismissing OA.No.1415 of 2015 vide order dated 08.04.2024 and as such, this Court is not inclined to interfere with the said order.
29. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs.
30. As a sequel, the miscellaneous applications pending, if any, shall stand closed.
__________________________________ ABHINAND KUMAR SHAVILI, J ___________________________________ LAXMI NARAYANA ALISHETTY, J Date: 07.03.2025 dr