Punjab-Haryana High Court
Dinesh Kumar vs State Of Haryana And Others on 31 August, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
IN THE PUNJAB & HARYANA HIGH COURT, CHANDIGARH
Civil Writ Petition No.2646 of 2012
Date of decision: 31.08.2013
Dinesh Kumar
..... Petitioner
Versus
State of Haryana and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.R.K.Malik, Sr. Advocate with
Mr. Vijay Dahiya, Advocate
for the petitioner.
Mr. Sunil Nehra, Sr. DAG, Haryana
Mr. Inder Pal Goyat, Addl. AG, Punjab
for respondent No.5
*****
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The Haryana Staff Selection Commission (HSSC) issued an
advertisement No.2 of 2008 in The Tribune inviting applications from
eligible candidates for filling up four posts of Drug Control Officer in the
Health Department, Government of Haryana. Three posts were meant for
general category and one post for Ex-serviceman (ESM/DESM). The
petitioner applied as a dependent of Ex-serviceman. The candidates were
interviewed on 27.11.2008 and the result of the selection was declared on
23.7.2009. The petitioner was selected. However, before appointment letters
could be issued to the selected candidates, the respondent department started
process of verification of educational and experience certificates of the
Kumar Paritosh
selected candidates. The Director General, Health Services, Haryana deputed
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 2
the State Drugs Controller, Haryana to report on their antecedents. The
process of verification yielded appointment to non-petitioner Suresh Kumar
of the general category since his credentials on verification were found in
order. The appointment of the remaining candidates including the petitioner
remained inconclusive. Before taking a final decision, the Director General,
Health Services, Haryana called the remaining selected candidates
recommended by the HSSC to appear before him for personal appearance
and presentation of documents to satisfy their claim for appointment. The
petitioner was called vide letter dated 15.10.2009. He appeared before
respondent No.2 on 15.10.2009. The petitioner explained that his experience
certificates were in order. His educational qualification certificates were not
in doubt. He re-submitted his experience certificate dated 25.1.1996 issued
by M/s Brawn Laboratories Limited certifying that the petitioner not only
worked as Production Supervisor with effect 12.7.1995 to 22.1.1996 but, as
per the company's record, he also worked as Trainee Supervisor-cum-
Analyst in the Quality Control Department during the aforesaid period with
effect from 27.7.1995 to 17.11.1995. This was a new document. The matter
did not reach finalization. Thereafter, the petitioner received a letter calling
him to appear before an Inquiry Committee constituted by the Government
to check credentials. The petitioner appeared before the Committee on
1.2.2010. The petitioner pleads that it is only the verification of his
experience with M/s Brawn Laboratories Limited which was to be
considered. In order to verify three months disputed experience that the
petitioner had in M/s Brawn Laboratories Limited, one Shri R.P.Hans,
Senior Manager and Personnel Administration of the Company who had
issued the experience certificate to the petitioner appeared before the
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 3
Enquiry Committee and supported the certificate as valid proof of
experience. He produced the company record of the petitioner i.e. joining
report, attendance register, wages register, ESI register, PF register and
resignation letter. On verification, the Inquiry Committee found the
experience certificate submitted by the petitioner as genuine. On 13.7.2010,
the petitioner was offered appointment as Drug Control Officer. He joined
service on 15.7.2010.
During the entire process of his verification exercise, the
selection was brought under judicial review in CWP No.19403 of 2009 filed
by non-selected candidate Geeta, titled Geeta v. State of Haryana and others
claiming inter alia appointment to the post of Drug Control Officer (General
Category) from the waiting list on the ground that the experience certificates
of the selected candidates (General Category) were allegedly found to be
bogus by the respondents. The petitioner was not impleaded as respondent in
the said petition. Another CWP No.20240 of 2009 was filed by Sanjay
Talwar in Sanjay Talwar v. State of Haryana and others was instituted in
this Court, inter alia seeking quashing of the selection of respondents No.5
and 6 therein i.e. Meenu Kataria and Girish Kumar, general category
candidates as Drug Control Officers under Advertisement No.2 of 2008.
Similarly, a plea was taken with respect to bogus experience certificates and
for appointment from out of the waiting list. The petitioner was not
impleaded as a respondent nor was his selection or appointment challenged
in CWP No.20240 of 2009. The respondent State filed its written statement
in CWP No.20240 of 2009, inter alia stating therein that the experience
certificate of Suresh Kumar were found to be genuine and he was,
accordingly issued appointment letter. It was further stated that the
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 4
remaining three candidates including respondents No.5 and 6 i.e. Meenu
Kataria and Girish Kumar were not given appointment as their experience
certificates were not found to be genuine. However, the respondent State
informed the Court that another Inquiry Committee headed by respondent
No.2 had been asked to submit its report after examining the matter
thoroughly and giving personal hearing to the candidates before making its
recommendations. The report of the Committee was awaited. In view of this
position, on 16.9.2010, this Court passed the following order in the main
CWP No.19403 of 2009 finding contradiction in the stand of the State with
respect to the two writ petitions on disclosure that a second enquiry was in
progress: -
" An advertisement for filling up four posts of
Drug Control Officers, was issued on 14.3.2008.
Selection Committee was constituted by respondent
No.2, which conducted an interview on 27.11.2008.
Reference is made to a news report appearing in
'Rohtak Kesri' that on the basis of a complaint, the
Health Department had conducted an inquiry and
found that except for one candidate, the experience
certificates of all the selected candidates were
found to be fake. As per the report, the Department
had thus not approved the selection of the selected
candidates.
Brother of the petitioner obtained an
information under the RTI Act, and it shows that
only one of the 4 selected candidates named Suresh
Kumar had joined duties. It is also disclosed that
no waiting list was prepared or received by the
Department along with the selection list.
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 5
The petitioner on inquiry learnt that first
selected candidate had obtained 52.01 marks in
aggregate and the last selected candidate had
obtained 41.47 marks. There is, however, no
information given about the marks obtained by
other candidates, who were not selected.
The Haryana Staff Selection Commission
has issued another advertisement in November,
2009 for filling up three posts of Drug Control
Officers on temporary basis. The petitioner has
filed the present writ petition with a prayer that she
be appointed as the three persons, who were
selected, were not eligible and were not appointed
and she was available for appointment.
In response to notice issued, written
statement has been filed on behalf of the
Commission. It is conceded in the reply that the
candidates, who were selected at Sr. No.2, 3 & 4
were not issued appointment letters in view of the
report submitted by the Inquiry Committee
showing that these persons produced bogus
certificates of experience. The stand further is that
the petitioner had obtained 41.44 marks as against
44.66 marks obtained by the last selected
candidate. It is disclosed that there are no
instructions in respect of Group-B posts for
maintaining any waiting list. In this regard,
reference is made to a letter issued by the Chief
Secretary to Government of Haryana, dated
1.7.2008 (Annexure R-2/1). It is, accordingly,
stated that the Haryana Staff Selection
Commission did not prepare any waiting list. Since
the petitioner was neither selected nor shown in
the waiting list, it is urged that the prayer made in
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 6
the writ petition cannot be allowed for granting
appointment to her. Counsel for the petitioner
submits that when the persons, who were selected,
but not appointed on the ground that they were not
eligible or had submitted bogus certificates, the
next in line should be appointed, even if no waiting
list was prepared. Counsel submits that usual
practice of preparing the waiting list or making
appointment therefrom would not be relevant for
consideration in such like cases as is the case in
hand.
I am not inclined to accept the submissions
made by counsel for the petitioner. Once only a
select list was prepared without any waiting list, it
is not fair to appoint a person who may be next in
line on the basis of merits. Once the selected
candidates were not appointed on the ground that
they had submitted some bogus certificates of
experience, the action would be justified. The
selection is made on the basis of merit and the
documentation is checked subsequent to selection.
The department had been fair in seeking the
documents and not offering appointments to those
who were not eligible for the same though had
been selected by the Haryana Staff Selection
Commission. Accordingly, the prayer of the
petitioner for appointment cannot be allowed. Even
otherwise, it is not clear from the pleadings that
she is next in line and could be offered
appointment on the basis of merit. Accordingly,
this writ petition is dismissed.
Before this order could be signed, another
case C.W.P. No.20240 of 2009 where challenge
was to the same selection came up for hearing. It is
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 7
noticed that the respondent in CWP No.20240 of
2009 has taken a different stand and are
maintaining that another inquiry is in progress. It
is not categorically stated that the appointment of
selected candidates is not being made. This change
in stand in regard to same selection is highly
objectionable. Accordingly, both the cases
thereafter, are adjourned for 23.9.2010 further
proceedings as per the order passed in CWP
No.20240 of 2009. Let these cases be heard
together."
The case was adjourned to 23.9.2010 for the Court to be
informed whether there was any move to appoint such persons whose
certificates were found to be bogus. On 23.9.2010, the appointment of
respondent No.4 was ordered to remain in abeyance till further orders. On
23.9.2010, the Government ordered that the appointment orders of Girish
Kumar and Dinesh Kumar shall be kept in abeyance. They were asked to
relinquish their respective charge of Drug Control Officers till further orders.
The orders were passed by the Financial Commissioner-cum-Principal
Secretary, Government of Haryana, Health Department, Chandigarh. It may
be noted that the petitioner was not a party to CWP No.20240 of 2009 and
respondent No.4 in the order dated 23.9.2010 was Girish Kumar. Though not
a party to the writ petition yet the petitioner's appointment was also kept in
abeyance in the wake of the interim order dated 23.9.2010, though the
petitioner was neither party nor named in the interim order. Nevertheless, the
petitioner's appointment was kept in abeyance. In purported compliance of
the order (P-8), Civil Surgeon, Hisar relieved the petitioner of the charge as
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 8
Drug Control Officer with immediate effect on 24.9.2010 (FN). This
impugned order is at P-9. The petitioner stopped discharging duties.
Against this action, the petitioner feeling aggrieved submitted
a representation on 29.9.2010 to respondent No.1 bringing the facts to the
notice of the Financial Commissioner and requested him to allow him to join
again as Drug Control Officer since he was not party to the pending
litigation. However, no action was taken on the representation which
remained undecided. Even though the interim order dated 29.9.2010 was
confined only to respondent No.4, in this petition who was Girish Kumar,
the petitioner's appointment against Ex-serviceman category was never
challenged before this Court in the aforesaid two writ petitions or any other.
When both CWPs No.19403 of 2009 and 20240 of 2009 came
up for hearing before the learned Single Judge of this Court on 16.9.2010,
and parties heard it has been recorded in the order dated 17.5.2011 that when
this matter came up for hearing on 16.9.2010, the Court had dismissed CWP
No.19403 of 2009 filed by Geeta claiming from the waiting list. However,
before the order could be signed, another CWP No.20240 of 2009 came up
for hearing before the same bench, in which case, this Court had earlier
noted contradictory stand taken by the State on the issue of pendency of
another enquiry. It was, therefore, ordered that both the cases should be
heard together. Thereafter, both the petitions were heard together but before
I advert to the final order passed, it may be noted that this Court with the
consent of the parties directed that an independent enquiry be got conducted
by the State Drugs Controller, Punjab and to call for a report from him,
obviously with a view to obtain a neutral opinion on the experience
certificates in question. The State Drugs Controller, Punjab under the
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 9
directions of this Court in CWP No.19403 of 2009 heard the selected
candidates on their certificates of experience. In the report submitted dated
20.1.2011, the certificates of Meenu Kataria and Girish Kumar were found
to be bogus. Both were parties before the Court. They did not challenge the
findings of the report in the pending petitions to vindicate their respective
stands. This Court passed the following order: -
" Accordingly, this writ petition is dismissed.
Before this order could be signed, another
case C.W.P. No.20240 of 2009 where challenge
was to the same selection came up for hearing. It is
noticed that the respondent in CWP No.20240 of
2009 has taken a different stand and are
maintaining that another inquiry is in progress. It is
not categorically stated that the appointment of
selected candidates is not being made. This change
in stand in regard to same selection is highly
objectionable. Accordingly, both the cases
thereafter, are adjourned for 23.9.2010 further
proceedings as per the orders passed in CWP
No.20240 of 2009. Let these cases be heard
together."
Thereafter, with the consent of the parties, an
inquiry was got conducted by the State Drugs
Controller, Punjab, which has since submitted its
report on 20.1.2011. According to the report, in the
case of selected persons, namely Ms. Meenu
Kataria and Girish Kumar, the certificates
submitted by them regarding experience were found
to be bogus. There is no challenge to the findings of
the report submitted by the State Drug Controller,
Punjab who was appointed to look into the matter
with the consent of the parties. There being specific
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 10
material against the said selected candidates
regarding the submission of fake documents in
support of the experience acquired by them, I am of
the opinion that their appointment cannot be
sustained. Accordingly, their selection as Drug
Control Officer is set aside.
The prayer of the petitioner in CWP
No.19403 of 2009 is that once the selection of these
candidates is set aside, she ought to be considered
for appointment, is also misplaced. This Court had
already opined regarding the contention that had
been raised by the petitioner in this writ petition
vide order dated 16.9.2010 and this was the only
reason why the petition was kept alive because of
the subsequent appointment of the Drug Controller,
Punjab to look into the matter regarding the
submission of certificates by the said selected
candidates.
In view of the aforesaid, C.W.P. No.19403 of
2009 is dismissed.
In so far as C.W.P. No.20240 of 2009 is
concerned, it is accepted partially only to the
limited extent that the challenge made to the
selection of two candidates, namely Meenu Kataria
and Girish Kumar is not found meritorious and
consequently the same is set aside.
As regards the selection of Suresh Kumar,
who has been arrayed as respondent No.4 in CWP
No.20240 of 2009, learned counsel for the
petitioner, on finding no adverse material in the
inquiry report against him, has given up the
challenge to his selection.
This petition also stands disposed of."
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 11
Consequently, the selection of Meenu Kataria and Girish
Kumar was set aside. It may be noted that Meenu Kataria never joined and
did not litigate further. Girish Kumar joined but also did not litigate further
after his appointment was kept in abeyance vide interim order dated
23.9.2010 passed in CWP No.20240 of 2009. It may be noted that on
17.5.2011, the petitioner's CWP No.19196 of 2010 was also taken up on the
said day but was adjourned to 12.8.2011 vide order dated 17.5.2011.
According to Mr. Malik, learned senior counsel appearing for
the petitioner, his case was segregated. He then filed CM No.981 of 2012 for
laying challenge to the impugned order dated 3.1.2012 by which the offer of
appointment was withdrawn by the Government. The application was
dismissed as withdrawn on 27.1.2012 with liberty to file a fresh writ petition
on the fresh cause of action. The present petition was filed on 29.1.2012.
At this stage, Mr. Malik points out that when the matter was sent
to the State Drug Controller, Punjab with the consent of the parties as
recorded in the order of the learned Single Judge, his client was not a party
to the consent. However, he admits that on receipt of notice from the State
Drug Controller, Punjab, to whom, the enquiry was entrusted under the
directions of this Court, he appeared and was heard before the report dated
20.1.2011 was prepared and submitted in terms of the directive of this Court.
Mr. Malik points out that his matter (CWP No.19196 of 2010), in which, the
petitioner had claimed appointment impugning the order (P-8) keeping his
appointment in abeyance was separated on showing that the disputed period
of 2 months with respect to his experience was explainable since it was
experience earned as a Trainee which was also good enough to qualify as
experience. The experience required under the rules as reflected in the
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 12
advertisement made no distinction between the experience earned in full-
fledged appointment or as a trainee with reference to the experience earned
in M/s Brawn Laboratories Limited.
During the pendency of petitioner's CWP No.19196 of 2010,
the impugned order dated 3.1.2012 was passed withdrawing the appointment
altogether. The order reads as follows : -
" HARYANA GOVERNMENT
HEALTH DEPARTMENT
ORDER
In continuation of Haryana Government order issued vide endst. No.5/39/2007-3HBIII, dated 23.9.2010 vide which the appointment letters issued to S/Sh. Girish Kumar and Dinesh Kumar, were kept held in abeyance in compliance of the orders dated 23.9.2010 of Hon'ble Punjab & Haryana High Court in 19403 of 2009 and CWP No.20240 of 2009, the Hon'ble Punjab & Haryana High Court had appointed Sh. Bhag Singh, State Drug Controlling and Licensing Authority, Punjab to conduct the inquiry to examine the experience certificate submitted by the candidate. During the inquiry, the experience certificate submitted by Sh. Dinesh Kumar were not found genuine. In view of above facts and the decision of the Hon'ble Punjab & Haryana High Court in CWP No.19403 of 2009 and CWP No.20240 of 2009 the appointment letter of Sh.Dinesh Kumar issued vide Government Memo No.5/39/2007-3 HBIII, dated 13.7.2010 to the post of Drugs Control Officer is hereby withdrawn.
Dated, Chandigarh NAVRAJ SANDHU
03.01.2012 Financial Commissioner &
Principal Secretary to
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document
CWP No.2646 of 2012 13
Government, Haryana, Health
Department"
Aggrieved by this order, the petitioner sought amendment of the writ petition through application under Order 6 Rule 17 of the CPC. However, when that application came up for hearing, the petitioner withdrew CWP No.19196 of 2010 to file a fresh petition on the same cause of action. This Court permitted him to do so. This is how the present writ petition has been filed challenging the order dated 23.9.2010 (P-8) directing appointment of the petitioner to be kept in abeyance, the order dated 24.9.2010 (P-9) which culminates from order dated 23.9.2010 (P-8) and relieves the petitioner of the charge of the post and the final impugned order dated 3.1.2012 (P-15).
Notice of motion was issued in the present case. The State has contested the case and has filed its written statement on 19.4.2012. It has been admitted that HSSC, Panchkula had recommended the name of the petitioner. It has been stated that Smt. Geeta filed LPA No.1336 of 2011 in CWP No.19403 of 2009 against the order of the learned Single Judge dated 17.5.2011 passed in her case which was dismissed vide order dated 16.8.2011. It is admitted that the educational certificates of the petitioner including other selected candidates were found correct. However, the experience certificate of the petitioner and two other selected candidates were found wanting as required under the advertisement. The petitioner had also filed an additional affidavit to assert that the State Drugs Controlling and Licensing Authority, Punjab who made the report on the directions of this Court to enquire into the matter did not enquire into the matter nor took into consideration the written comments submitted by the Senior Personnel Kumar Paritosh 2013.09.11 10:41 I agree to specified portions of this document CWP No.2646 of 2012 14 Manager of M/s Brawn Laboratories Limited, Faridabad which were in his favour nor has taken into consideration the affidavit filed by Adarsh Kumar Gupta, Director of M/s Brawn Laboratories Limited. It is asserted that if the above two documents were taken into consideration, then the enquiry officer would never have reached to the conclusion that the experience rendered by the petitioner from 27.7.1995 to 17.11.1995 as Trainee Supervisor-cum- Analyst in Quality Control Department is not genuine. It is stated that Haryana Government had constituted a Committee headed by Dr. Narveer Singh, Director General, Health Services, Haryana and the said Committee after perusing the comments (P-12) and affidavit (P-13) had reached the conclusion that the said certificate (P-3) is genuine and only thereafter the petitioner was declared duly qualified for the post. Therefore, according to Mr. Malik, the relevant consideration with respect to the experience certificate was not taken into account by the Agency deciding which was outside the territory of Haryana. A short affidavit by way of counter has been filed by Mr. Bhag Singh, State Drugs Controller, Punjab in respect of the additional affidavit filed by the petitioner. It is stated that the aforesaid material was duly considered during the course of preparation of the report. It has been explained that the statements of the persons from M/s Brawn Laboratories Limited only favour him later on suggesting it as an afterthought. The relevance of the certificate emanates from Rule 78(f) of the Drugs and Cosmetics Rules, 1945 which require experience in a particular manner and in terms of the advertisement itself that the experiences were required separately both for the manufacturing or testing of drugs/substance for the minimum required period of 18 months to be credited for eligibility for appointment.
Kumar Paritosh 2013.09.11 10:41 I agree to specified portions of this document CWP No.2646 of 2012 15 I have heard Mr. Malik and Mr. Nehra for the respective parties at considerable length.
The question which has crystallized after hearing both the sides is whether the petitioner could be adversely affected by the orders passed in CWPs, in which, he was not a party. The petitioner had been appointed after his certificates had been examined by the State of Haryana and its agents duly authorized before the appointment was offered after considerable long time from selection and by a careful and conscious consideration exercise carried out to satisfy itself. They may have been right or they may have been wrong but the issue need not be gone into by this Court in view of the nature of the proposed order to be passed in this petition. The fact remains that the petitioner's appointment was kept in abeyance as a result of the interim order dated 23.9.2010, in which, this Court had ordered only the appointment of respondent No.4 to be kept in abeyance till further orders and not of the petitioner. Notwithstanding, the Government passed the order (P-8) and on the next day, withdrew the charge of the post vide order dated 24.9.2010 issued by the Civil Surgeon, Hisar; when the petitioner's case was separated on 17.5.2011 since the learned Single Judge passed a common order in both the CWPs i.e. CWP No.19403 of 2009 i.e. filed by Smt. Geeta and CWP No.20240 of 2009 filed by Sanjay Talwar who had both challenged the selection and prayed for appointment from the waiting list in place of the selected candidates on the ground that the experience certificate of the selected candidates were bogus. This Court vide order dated 17.5.2011 had the report dated 3.1.2012 before it prepared by the State Drugs Controller, Punjab.
Mr. Malik argues that all the three writ petitions were listed Kumar Paritosh 2013.09.11 10:41 I agree to specified portions of this document CWP No.2646 of 2012 16 on the same day. This Court set aside/quashed the appointment of Meenu Kataria and Girish Kumar; the appointment of the petitioner was set aside by an order of the Court; the petitioner was not party to the aforesaid two writ petitions and, therefore, the enquiry got conducted by an outside agency/authority was not with his consent; he, however, by matter of abundant caution, appeared before the State Drugs Controller, Punjab on notice received so that he may not go ex parte adverse to his interest uncontested; there was no direction of this Court for him to appear before the State Drugs Controller, Punjab and, thus, he could not be put in a position worse than what he was prior to or after the enquiry proceedings which culminated in the report on 20.1.2011; his writ petition i.e. CWP No.19196 of 2010 was not dismissed by this Court; the petitioner was not heard when the impugned order dated 3.1.2012 was passed withdrawing the appointment; his employer was Haryana Government and they were his masters and not the State Drugs Controller, Punjab; his appointing authority rested in Haryana Government and not in the Government of Punjab; there was no directions of this Court while calling upon the State Drugs Controller, Punjab to submit a report that the appointing authority of the petitioner i.e. Haryana Government would be bound by that report or that it would not be examined by the latter and the final decision taken after associating the petitioner before visiting him with adverse consequences of a permanent nature. The petitioner had served the Government for a short while before 24.9.2010. In this background, Mr. Malik submits that the petitioner has been condemned unheard by his appointing authority and by the State that he belongs.
Offering effective opportunity of hearing is a deeply embedded Kumar Paritosh 2013.09.11 10:41 I agree to specified portions of this document CWP No.2646 of 2012 17 principle of natural justice recognized by all the Courts in dispensation of justice. Mr. Malik learned Senior Counsel relies on the judgment of the Supreme Court in Shridhar v. Nagar Palika, Jaunpur, 1990 Supp SCC 157 on the right of hearing which is part and parcel of the rule of law and reason which is part of the basic structure of the Constitution and which is inviolable and cannot be waived. It was resolved in that case as follows: -
8. The High Court committed serious error in upholding the order of the government dated February 13, 1980 in setting aside the appellant's appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's order had been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void.
The High Court committed serious error in upholding the Commissioner's order setting aside the appellant's appointment. In this view, orders of the High Court and the Commissioner are not sustainable in law.
In Ombir Singh v. Distt. Rural Development Agency; 1991 (2) SCT 692, Justice R.S.Mongia, J. reiterated the principle that where the persons were selected and appointed through properly constituted selection Kumar Paritosh 2013.09.11 10:41 I agree to specified portions of this document CWP No.2646 of 2012 18 committee, they could not be relieved without assigning any reason or giving an opportunity to show cause. Even if there was some irregularity in the selection or it was to be set aside on the basis of some complaint regarding irregularities committed by the Selection Committee, action could not be taken without giving notice of opportunity of hearing. To reach this conclusion, Shridhar (supra) was relied upon. If hearing was offered by the State Drugs Controller, Punjab before making his report, that was not sufficient compliance of the principles of natural justice since he was not the appointing authority in the Haryana Government. So far as the petitioner is concerned, it is appointing authority alone that can take a final call on the experience certificates relied upon by the petitioner at the time of appointment or thereafter and, therefore, in the in-house enquiry held within the Haryana Government before appointment was offered his claim had been considered and only then he was allowed to join service.
In such circumstances, Mr. Nehra submits that in case, the impugned orders especially P-15 (3.1.2012) have to be set aside for violation of principles of natural justice, this Court should order that setting aside of the order would not lead to automatic appointment which should await fresh orders by the appointing and disciplinary authority in the Government of Haryana nor should this order give a right to the petitioner to claim straightaway monetary benefits accruing out of the quashing of the impugned orders which should be left to the discretion of the appointing authority alone to be dealt with in accordance with law and the rules. There is merit in the submission of Mr. Nehra which is based on reason.
For the foregoing reasons, this writ petition is allowed and the orders P-8, P-9 and P-15 stand quashed for breach of principles of natural Kumar Paritosh 2013.09.11 10:41 I agree to specified portions of this document CWP No.2646 of 2012 19 justice. As a result of setting aside of the orders, the competent authority would pass a fresh order after offering an effective opportunity of hearing to the petitioner to defend his appointment. The petitioner may make a comprehensive memorial addressed to the competent authority to articulate his case clearly and adduce evidence so that it makes it easier for the 1st respondent to pass a reasoned order on the issues involved. Needless to add, the fresh examination of the facts of the case would center on a revisit of the report of the Committee under the Chairmanship of Dr. Narveer Singh, Director General, Health Services, Haryana dated 11.5.2010 (P-5) with respect to the petitioner and the report of the State Drugs Controller, Punjab dated 20.1.2011 or any fresh material adduced to see whether the petitioner possesses the requisite experience for the post in accordance with rules.
Let the fresh exercise be undertaken and concluded as expeditiously as possible, preferably within a period of 3 months from the date of receipt of a certified copy of this order. However, nothing said in this order will be taken as an expression on the merits of the case since it was never intended nor were parties heard on merits at all on the correctness or otherwise of the experience certificate/s relied upon and so the narration of facts above was only for the limited purpose of being a backgrounder and prelude to the understanding of the case in the context of the plea of -no notice, no hearing- and resultant prejudice caused and for a decision afresh by the appointing authority with its open and judicious mind to whom this matter stands remitted.
(RAJIV NARAIN RAINA)
August 31 , 2013 JUDGE
Paritosh Kumar
Kumar Paritosh
2013.09.11 10:41
I agree to specified portions
of this document