Central Administrative Tribunal - Delhi
Sonu Kumar S/O Sh. Raj Kumar vs Union Of India Through on 5 October, 2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.1534/2013
OA No.1533/2013
OA No.1535/2013
Reserved on: 20.08.2014
Pronounced on: 05.01.2015
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
OA No.1534/2013
Sonu Kumar s/o Sh. Raj Kumar
Nagar Panchayat,
Siwal Khas,
Meerut 250 501 (UP). Applicant
OA No.1533/2013
Ashu Pal s/o Sh. Jai Pal,
Vill. Itayara, PO-Mohiouddinpur,
PS-Partapur,
Distt. Meerut (UP). Applicant
OA No.1535/2013
Mahender Kumar Meena
S/o Sh. Parsadi Lal Meena
Vill. Surer, PO Chandera,
Tehsil Sikar, Distt. Dausa,
Rajasthan 303 509. Applicant
Versus
1. Union of India through
Secretary,
Ministry of Home Affairs,
South Block, New Delhi.
2. The Chief Forensic Scientist,
Directorate of Forensic Science Services,
Ministry of Home Affairs,
Block No.9, 8th Floor,
CGO Complex, Lodhi Road,
New Delhi 3.
3. The Director,
Central Forensic Science Laboratory,
Directorate of Forensic Science,
Govt. of India, Ministry of Home Affairs,
P.O. Amberpet, Ramanthapur,
Hyderabad 500 013. Respondents
Appearances: Sh. Sachin Chauhan, counsel for applicants.
Ms. Aunpama Bansal, counsel for
respondents.
O R D E R
By Dr. B.K. Sinha, Member (A):
The instant three cases i.e. OA No. 1533/2013, 1534/2013 and 1535/2013 relate to a common subject based upon similar arguments and leading to identical relief(s) and, therefore, have been heard together. Hence, all these OAs, being identical in facts and law, are being disposed of by this common order.
2. The facts of OA No. 1534/2013 (Sonu Kumar versus Union of India & Others), being the lead case, are being considered representative of the three for the sake of recording of the order. The case of the applicant is that having possessed the educational qualification of 12th standard, he applied for the post of Lab Attendant with respondent no.2 that being the Central Forensic Science Laboratory in pursuance to the advertisement published in the Employment News dated 10-16 April, 2010 against the vacancies of 2009 reserved for candidates belonging to OBC and PH category. The applicant, who is an OBC and PH candidate, applied for and was selected against the post in question which required the educational qualification of 8th pass from a recognized school. The offer of appointment was issued to the applicant vide Memorandum dated 20/21.12.2010 by the respondents, inter alia, stipulating that the services of the applicant would be terminable on one months notice on either side in accordance with the Central Civil Services (Temporary Service) Rules, 1965 without assigning any reasons. However, in the meantime, following the implementation of the report of the 6th Central Pay Commission [hereinafter referred to as CPC], in view of the DOP&T OM dated 30.04.2010, there was to be no further recruitment in Group-D posts. Accordingly, the Group-D posts were re-classified as Group-C posts in multi-tasking mode and were placed in Grade Pay of Rs.1800/-. Further, model recruitment rules for these posts were circulated vide DOP&T OM dated 12.05.2010 according to which the recruitment to all the non-technical Group-C posts was to be initiated by the Staff Selection Commission. The offer of appointment issued to the applicant was accordingly cancelled vide order dated 17.06.2011 on the following grounds:-
In the context of recommendation of 6th CPC and its implementation w.e.f. 01.01.2006 and as per Govt. of Indias instructions contained in DoPT OM dated 30.04.2010 and 12.05.2010, no further recruitment was to be made in Group D scales/posts. The existing Group-D have already been converted into Group-C posts pay band and declared as Multi Tasking Staff. Accordingly, the action to fill up these posts (Group-C) was to be taken up by the SSC and cannot be filled up by the Deptt. Hence, the recruitment action taken by the Laboratory to fill up the post of Lab. Attendant (Group-D post) was in contravention of the instructions issued by the Govt. It is this order which is assailed by the applicant mainly on the following grounds:-
(i) In the first place, it has been argued by the learned counsel for the applicant that the DOP&T instructions dated 30.04.2010 would not apply to the recruitment initiated prior thereto. The applicant was admittedly issued an offer of appointment subsequent to the selection process and, thus, the same cannot be withdrawn without having issued a show cause notice to him and following due procedure.
(ii) In the second place, having been once given the offer of appointment following due process and its subsequent withdrawal without issuing show cause notice is bad in law and leads to civil consequences thereby attracting application of the rules of natural justice. The applicant has submitted that this is a well settled position of law and has relied upon the decision of the Full Bench of this Tribunal in the case of Rajiv Tomar versus Union of India & Others [OA No.299/2007 decided on 01.09.2008].
(iii) In the third place, the appointment has taken place through a process of advertisement against the vacancy year 2009 and the applicant possesses more than the requisite educational qualification of 8th standard. The respondents have failed to apply their mind on the clarification issued by the Ministry of Finance vide OM dated 24.12.2008 whereby the respondents were required to design a training curriculum for Group-D employees who had been upgraded in PB-1 without having the requisite minimum qualification. The applicant once having been issued an offer of appointment was now entitled to upgradation into Group-C post and to undergo the required training. The recruitment rules qua the minimum qualification of 10th pass against Group-C posts (MTS) had not been amended to the date of the impugned order. This alone would be a sufficient ground for appointment of the applicant in pursuance of the advertisement as per the notified recruitment rules prior to the issuance of OM dated 30.04.2010, and the impugned order cancelling the appointment is contrary to the statues, hence bad in law.
(iv) In the fourth place, the applicant contends that there is no provision in the recruitment rules for recalling the advertisement once having been issued in respect of posts existing prior to 30.04.2010. Hence, the authorities have rightly gone ahead to make selection as per the advertisement issued and the same did not violate any rules. Thus, the action of the respondents in cancellation of the offer of appointment against the post of Lab Attendant is absolutely illegal, arbitrary and violative of principles of natural justice, equity and fair play. It is also violative of the rights guaranteed under Articles 14, 16 & 21 of the Constitution.
3. The respondents have filed their counter affidavit wherein they have rebutted the contentions of the applicant in the OA. The respondents have argued that as a result of the acceptance of the recommendations of the 6th CPC, the existing Group-D posts have already been converted into Group-C posts and declared as Multi Tasking Staff in Pay Band-I with Grade Pay of Rs.1800. According to the OM dated 12.05.2010, the action to fill up the Group-C posts was to be taken up by the Staff Selection Commission. All the Ministries/Departments were directed to indicate their requirements for Non-technical Group-C posts in PB-I with Grade Pay of Rs.1800/- to the SSC for immediate action of recruitment. When this Circular was issued, only advertisement had been issued but no offer of appointment had been made. Hence, the recruitment undertaken to fill up the posts of Lab Attendant Group-D posts was clearly in contravention of the instructions issued by the Government. No such recruitment should have been undertaken, even notified earlier, as the post did not exist.
4. The learned counsel for the respondents has further submitted that neither OM dated 30.04.2010 nor OM dated 12.05.2010 has been challenged and, therefore in absence of challenge of the afore OMs, the Original Application would not sustain. The respondents have further submitted that it is only the offer of appointment that was made against the non-existent post, which was accordingly withdrawn at the earliest. Resultantly, neither any appointment took place nor did the applicant join the post. The offer of appointment by itself does not create any right under Article 311(2) of the Constitution till such person, to whom the offer of appointment has been made, has joined the service and has started functioning. The respondents, thus, submit that giving a show cause is a bare formality and have relied upon a decision of the Honble Supreme Court in the case of Shekhar Ghosh versus Union of India & Another [2007 (1) SCC 331]. The learned counsel for the respondents further submitted that the respondents were well within their competence to rectify the irregularity which had taken place by making offer of appointment and in this regard relied upon the decision of the Honble Supreme Court in the matter of Union of India & Others versus Bikash Kuanar [2006 (8) SCC 192]. Once the Group-D posts stand abolished no appointment could have been made irrespective of the fact that the Recruitment Rules had not been amended as yet. It is the case of the respondents that a show cause notice is issued only to the staff working within the department and, therefore, question of issuing show cause notice to the person who has not joined does not arise at all.
5. The applicant has filed a rejoinder wherein he has rebutted the points taken in the counter affidavit by the respondents. The applicant has relied upon the clarification of the DOP&T published in the April 2013 edition of Swamys News which provides that the posts are to be filled up as per the eligibility conditions prescribed in the recruitment rules in force at the time of occurrence of vacancies unless the recruitment rules are amended retrospectively. It is the case of the applicant that since the recruitment rules have not been amended, the recruitment has correctly been made.
6. We have carefully examined the pleadings submitted by the parties as also the documents and law citations as adduced by them. We have also considered the oral submissions made on either side, which are more or less as per the pleadings, on the basis whereof, to our mind, the only issue to be decided is that whether issuance of a show cause notice and following due procedure prescribed under Article 311(2) of the Constitution was mandatory to a situation where only offer of appointment had been issued against posts which stand abolished/converted soon after the issuance of the advertisement and before the offer of appointment.
7. Admittedly, the post of Lab Attendant was governed by the Bureau of Police Research and Development Laboratory Attendant (Group D Post) Recruitment Rules, 2002, which provides as under:-
Name of Post Number of Post Classification Scale of Pay Whether selection by merit or selection-cum-seniority Whether benefit of added years of service admissible under rule 30 of the Central Civil Services (Pension) Rules, 1972.1 2 3 4 5 6
Laboratory Attendant 48* (2002) *Subject to variation dependent on workload General Central Service Group D, None-Gazetted, Non-Ministerial.
Rs.2660-65-3300-70-4000 Not applicable No Age limit for direct recruits Educational and other qualifications required for direct recruits Whether age and educational qualifications prescribed for direct recruits will apply in the case of promotes Period of Probation, if any Method of recruitment whether by direct recruitment or by promotion or by deputation/ absorption and percentage of the posts to be filled by various methods.7 8 9 10 11
Between 18 and 27 years, (Relaxable for Government employees upto the age of 40 years in case of general candidates and 45 yerars in case of candidates belonging to the Scheduled Castes and Scheduled Tribes candidates in accordance with the instructions or orders issued by the Central Government from time to time.
Note:-1. The crucial date for determining age limit shall be the closing date for receipt of applications from candidates in India (and not the closing date prescribed for those in Assam, Meghalaya, Arunachal Praddesh, Mizoram, Manipur, Nagaland, Tripura, Sikkim, Ladakh Division of Jammu and Kashmir State, Lahaul and Spiti district and Panaji Sub Division of Chamba district of Chamba district of Himachal Pradesh, Andaman and Nicobar Islands or Lakshadweep).
Note:-2. The crucial date for determining the age limit in the case of candidates from employment exchange shall be the last date upto which the Employment Exchange are asked to nominate candidates.
Essential 8th class pass from recognized school with good knowledge of reading and writing of Hindi and English.
Desirable:
Experience of work in Photo/Chemical/ Electronci Laboratory Not applicable Two years By deputation failing which by direct recruitment.
In case of recruitment by promotion/deputation/absorption grades from which promotion/ deputation/absorption to be made If a Departmental Promotion Committee exists, what is its composition.
Circumstances in which Union Public Service Commission to be consulted in making recruitment.12 13 14
Deputation/Absorption
(a) Officers of Central/State Governments:-
(i) Holding analogous post on regular basis, or
(ii) With four years regular service in the scale of pay Rs.2550-3200 or equivalent; and
(b) Possessing the requisite qualification(s) and experience mentioned in coloumn 8.
(Period of deputation including the period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organization/ department of the Central Government shall ordinarily not exceed three years).
Departmental Promotion Committee (for promotion and confirmation) consisting of:
1. Assistant Director (Admn,.), Bureau of Police Research and Development Chairman
2. Administrative Officer, Bureau of Police Research and Development Member
3. Section Officer, CFIs, Bureau of Police Research and Development - Member Not applicable.
8. We find that the advertisement was published in the Employment News dated 10-16 April, 2010 for two posts of Lab Attendant (Group-D Non-Gazetted) on direct recruitment basis reserved for OBC with essential qualification of 8th pass from recognized school with good knowledge of reading of Hindi and English (one of the two posts reserved for persons with OL, BL type of functional disability). The closing date for submission of applications was within four weeks from the date of publication of the advertisement. In other words, it would be by 17th May, 2010. However, soon after the issuance of the advertisement, the DOP&T issued OM dated 30.04.2010, which is being extracted hereunder for easy reference:-
Sub:Model Recruitment Rules for Group C posts in Pay Band-1, with Grade Pay of Rs.1800/- (pre-revised Group D posts).
The 6th CPC recommended that all Group D pots in the Government will stand upgraded to Group C Pay Band-1 with Grade Pay of Rs.1800, along with the incumbents (after suitable training, wherever required). The other recommendations of the Commission, in this regard include:
(i) There will be no further recruitment in Group D.
(ii) The existing Group D posts will be placed in Group C Pay Band-1 with Grade Pay of Rs.1800.
(iii) The minimum qualification for appointment to this level will be either 10th pass or ITI equivalent.
(iv) Multi-skilling, with one employee performing jobs hitherto performed by different Group-D- employees.
(v) Common Designation for these posts.
2. Model Recruitment Rules (Annex-I) have been framed keeping in view the recommendations of the Pay Commission. All the Ministries/ Departments are requested to amend the Recruitment Rules for the erstwhile Group D posts as per the Model RRs and the recommendations of the Pay Commission.
3. Powers for framing/amendment of RRs for Group C posts have already been delegated to Ministries/Departments. Therefore, the RRs may be framed accordingly, in consultation with Ministry of Law without further reference to this Department. This Department needs to be consulted only if any deviations from the model RRs are proposed.
4. Ministries/Departments may adopt the designation of Multi-Tasking Staff for some common categories of posts in the secretariat offices. Annex-II indicates the categories of erstwhile Group-D posts which may be given this designation and illustrative list of duties attached to these posts. For other categories of posts, Ministries/Departments may adopt single designation for posts whose duties are similar in nature and where the officials can easily be switched from one task to another. In all cases it may be ensured that:
a) The posts are classified as Group C
b) The posts are placed in Pay Band-1 with Grade Pay of Rs.1800/-.
c) The minimum qualification for appointment is prescribed as 10th pass. Where technical qualifications are considered necessary, ITI in the relevant subject may be prescribed as the minimum qualficiation.
5. Ministry of Home Affairs etc. are requested to bring the contents of this O.M. to the notice of all their Attached/Subordinate Offices. The autonomous/statutory bodies may adopt the same with the approval of the competent authority as per their rules/statutes.
6. Hindi Version follows.
Sd/-
(J.A. Vaidyanathan) Deputy Secretary to the Government of India.
9. Admittedly, exactly 12 days after the issue of OM dated 30.04.2010, the respondents issued OM dated 12.05.2010 whereby the powers of making recruitment were taken away from the respective departments in respect of Non-Technical Group C posts in the Pay Band-1 with Grade Pay of Rs.1800/- and vested in the Staff Selection Commission. The dates of sequence of events are as follows:-
(1) Date of advertisement 10-16 April,2010 (2) Implementation of new guidelines 30.04.2010 Issued by the DOP&T (3) Power of recruitment taken away 12.05.2010 from the departments and vested in the Staff Selection Commission (4) Date of issue of offer of 20.10.2010 Appointment.
(5) Date of withdrawal of offer 19.07.2011
10. It is quite obvious that the opening lines of the OM dated 30.04.2010 starts with the recommendation of the 6th CPC and its acceptance by the Government. It clearly provides that the existing Group-D posts would be placed in Group-C posts PB-1 with Grade Pay of Rs.1800/-. It further raises the educational qualification from 8th pass to 10th pass or ITI and equivalent, multi skilling and common designation of posts as Multi Tasking Staff. In other words, from the date of issue of this order, Group-D posts are no longer in existence and have been converted into Group-C posts. The OM dated 12.05.2010 further takes away the right of every department to make appointment. In other words, we notice that since the offer of appointment had been made on 20.12.2010, the applicant could not have argued that the orders had not been received by the appointing authority or that they were not aware of the changes. This is not his argument either. Instead, the argument of the applicant is based on non-incorporation of the changes in the recruitment rules. However, the position remains that once the OM dated 30.04.2010 having been issued effectively, Group D posts do not exist as they had all been converted into Group-C posts subject to procedure prescribed. Hence, appointment could not have been made against non-existing posts at all. Thus, the appointing authority could not have made appointment in derogation of the instructions issued by the Government.
11. The question would remain as to what would be the effect of non-incorporation of the changes in the recruitment rules. Of course, it is an admitted position that once the instructions suggesting certain changes in the recruitment rules have been issued, the same are immediately required to be carried out. However, we notice that model recruitment rules have already been circulated with directions to Ministries/Departments to amend the recruitment rules as per the model recruitment rules. Therefore, it was incumbent upon the appointing authority to amend the recruitment rules within a reasonable time. The fact remains that this amendment was not carried out by the department, and the appointing authority has gone ahead to make appointment knowing well that posts against which they were making appointment, irrespective of the fact that vacancies related to the year 2009, had ceased to exist. Therefore, we find an element of deliberate collusion on part of the appointing authorities. We do not think that non-amendment of recruitment rules would bring to life a post which has ceased to exist.
12. In the case of Mahesh Chandra Verma & Others versus State of Jharkhand & Others [2012 (11) SCC 656], the Honble Supreme Court held that the appellants were direct recruits from the Bar and were posted as Additional District Judges, Fast Track Courts [hereinafter referred to as ADJ, FTC]. The High Court vide its order dated 07.03.2011 disposed of the Writ Petition filed by the Judicial Officers who were members of the Subordinate Judiciary of the State of Jharkhand, challenging the appointment of the appellants to the posts of ADJ, FTC. The writ petitioners sought a declaration that the entire selection process for appointment of the appellants to the post of ADJ, FTC pursuant to advertisement dated 23/5/2001 was illegal and sought quashing of the same. The Honble Supreme Court, however, observed that It must be mentioned at the cost of repetition that on 23/05/2001 when the advertisement was issued, the posts for FTCs were not sanctioned. Therefore, these posts were not even in contemplation. They cannot be termed as vacancies contemplated or anticipated by the High Court. Undoubtedly, the correspondence between the Law Ministry and the High Court indicates that the High Court was informed about the need for creation of FTCs and that Fast Track Court Scheme may be brought into action in Jharkhand but, till the posts for FTCs were sanctioned, there was no question of taking into account any anticipated vacancies. When advertisement is for specific number of posts, the State cannot appoint more than the number of posts advertised. The select list gets exhausted when all the advertised posts get filled. In Rakhi Ray and in a long line of other cases to which reference need not be made, this Court has clarified that appointments beyond the number of posts advertised would amount to filling up future vacancies and the said course is impermissible in law. There is no substance in the contention that appellants were appointed under Rule 4(a) of the Rules of 2001 or that they can get advantage of Rule 25 thereof. The Rules of 2001 and the regulations which are meant for Jharkhand Superior Judicial Service do not apply to ad hoc ADJs appointed under a scheme of temporary duration like Fast Track Court scheme. The Rules of 2001 were not amended to make them applicable to FTCs. The appellants were appointed in ex-cadre post for a temporary period. This is clear from their appointment letters. Therefore, their appointments were not under Rules of 2001. Merely because they were made to take written examination and viva voce their appointments cannot be termed as substantive appointments nor can the nature of work done by them make their appointments substantive.
13. A similar opinion has been expressed in the case of Vijoy Kumar Pandey versus Arvind Kumar Rai and Others [AIR 2013 (SC) 2202] where the Honble Supreme Court clearly held that preparation of selection list or panel by itself does not entitle candidate whose name figures in such a list/panel to seek an appointment or claim a mandamus. In paragraphs 15 & 16 of the judgment, the Honble Supreme Court has held as under:-
15. In Rakhi Ray & Ors. v. The High Court of Delhi, (2010) 2 SCC 637, a three-Judge Bench of this Court held:
A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.
16. Following the decision in Shankarsan Dass case (supra), this Court in State of Orissa & Anr. v. Rajkishore Nanda & Ors., 2010 (6) SCALE 126 held:
A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.
14. In the case of D.R. Yadav & Another versus R.K. Singh & Another [2003 (7) SCC 110], the Honble Supreme Court has held as under:-
27. The ad hoc or temporary promotion granted to the appellants on 3-5-1986 and 13-1-1987 respectively on non-existent posts of Assistant Executive Engineer would not, therefore, confer any right of seniority on them. Thus, for all intent and purport for the purpose of determination of seniority, the appellants were not promoted at all. Once they have been absorbed with respondent No. 1 and other employees similarly situated, their inter se seniority would be governed by the statutory rules operating in the field. The case of the appellants vis-a-vis respondent No. 2 although may be governed by the special rules, in terms of Rule 7, the same has to be determined on the criteria of continuous length of service including the service rendered in a Development Authority, Nagar Mahapalika, Nagar-palika or Improvement Trust on similar posts. The appellants, it will bear repetition to state, although were promoted at one point of time on purely ad hoc basis to the posts of Assistant Executive Engineer as the said posts even in their parent authority were not of similar type, the same would not be relevant for the purpose of determining the inter se seniority. If the rule of continuous service in same and similar posts is to be resorted to, the date of initial appointment would be a relevant criteria therefor. [See M. Ramachandran v. Govind Ballabh and others [(1999) 8 SCC 592], K. Anjaiah and others v. K. Chandraiha and others [(1998) 3 SCC 218], Vinod Kumar Sharma v. State of U.P. and another [(2001) 4 SCC 675), S. N. Dhingra and others v. Union of India and others [(2001) 3 SCC 125].
15. The above decisions do not leave the issue in any form of doubt that posts must exist before persons get appointed against them. Appointments made against non-existent posts are ab initio void and no rights shall accrue against them to such appointees.
16. As regards the issue of show cause notice, the applicant has placed reliance on the Full Bench decision of this Tribunal in the case of Rajiv Tomar versus Union of India & Others (supra) wherein the basic issue was whether divergent and conflicting views were taken by this Tribunal on the requirement of issuance of notice and hearing the concerned police official before showing him the exit door for his non-disclosure of alleged involvement in a criminal case.
17. The facts of the said case are that the applicant after having cleared the physical and medical test as also written examination and interview/personality test, was appointed as Constable in Delhi Police on 28.03.2006 and was sent for training. He was subsequently removed from service when his involvement in criminal case came to light, whereas in the case in hand, only offer of appointment has been issued but no appointment has been made nor has the applicant worked even for a single day against the post. Thus, the facts of both the cases being entirely different, the decision of Full Bench of the Tribunal in the case of Rajiv Tomar versus Union of India & Others (supra) relied upon by the applicant is not applicable to the facts of the present case.
18. Similarly, in the case of Kapil Kumar & Others versus Govt. of NCT of Delhi & Others [OA No.2865/201 and other connected matters decided on 02.03.2012], offer of appointment had been issued to the persons, who had been selected after due selection procedure, but were subsequently withdrawn and treated as cancelled on the ground that their driving licences were found fake and had not been issued to them. The concerned Bench of this Tribunal has held as under:-
8. We have heard the learned counsel for the parties. The case of the applicants herein cannot be considered in isolation. Admittedly, the applicants belong to the same batch of candidates who applied for the post of Fire Operator under the Delhi Fire Service in terms of the DSSSBs advertisement in the year 2007 under Post Code No.015/2007. The applicants in OA-3302/2011 (supra) were also their batchmates. The only difference between the applicants in these OAs and those in OA-3302/2011 (supra) is that while the former has not yet joined as Fire Operators yet with the respondent No.3, the later had already joined it. When the services of the applicants in OA-3302/2011 (supra) have been dispensed with, without furnishing them the copies of the letter dated 21.1.2009 indicating the authenticity of the Driving Licence and letter dated 15.11.2010 indicating a contrary information, this Tribunal held that the non-supply of those documents were against the principles of natural justice. Accordingly, this Tribunal has quashed and set aside those orders of termination and directed the respondents to reinstate them in service forthwith. However, liberty was granted to them to reinstate them in service forthwith. However, liberty was granted to them to place them under suspension till they take a decision in the matter after providing them the copies of all documents referred to in the show cause notice and more specifically the confidential report dated 15.11.2010. After getting the reply from the applicants, the competent authority was directed to pass speaking and reasoned order in each case. The applicants therein have also been given the liberty to challenge the decisions in their case, if they adversely affect them. In the present case, before the applicants could join as Fire Operator on the basis of the offers of appointment issued to them, the department has cancelled it and treated their acceptance letter as withdrawn without issuing any notice to them. In both cases, they have acted in violation of the principles of natural justice. Further, the fact of the matter is that the applicants in those cases as well as in these cases, belong to the same batch of candidates who were selected by the DSSSB. Just because part of the selected candidates have been given appointment on temporary basis and others were only at the stage of offer of appointment, they cannot be treated entirely on two different footings. In both cases, issue being the same, the question is whether the selected candidates could be denied appointment on the basis of allegation of the genuinity of the driving license without holding a proper enquiry. We, therefore, do not agree with the respondents that just because applicants in these OAs have not been granted the temporary appointments, unlike the case of their counterparts in the same batch, they can be treated differently. Secondly, we find that the applicants herein have already been offered the appointment as Fire Operators. They have also accepted the offer. The impugned order says that the acceptance has been cancelled. In our considered view, it is not for the respondents to cancel the acceptance given by the candidates. At best they could have done was to cancel their candidature. However, treating the applicants of the same batch equally, in our considered view, the applicants herein are also to be given the benefit of the principles of law laid down by this Tribunal in OA-3302/2011 and connected cases decided on 12.10.2011. We, therefore, quash and set aside the impugned identical memoranda dated 19.4.2011 issued to all the applicants in these OAs and dispose of with the direction to the Respondents to issue show cause notices to all of them as to why their offers of appointment should not be cancelled, hear them personally and take a final decision on their eligibility for appointment as Fire Operators under intimation to them. The aforesaid exercise shall be completed within a period of 2 months from the date of receipt of a copy of this order. If the applicants are still aggrieved by the decisions of the respondents in these matters, they are at liberty to challenge them through appropriate proceedings, if so advised. There shall be no order as to costs.
19. Again, we find that both the cases differ in material facts inasmuch as in the case of Kapil Kumar & Others versus Govt. of NCT of Delhi & Others (supra), offer of appointment had been made under due process against the existent posts and the persons, to whom offer was made, had joined the posts. However, where no post exists, as we have already held, no appointment or even offer of appointment can be made. The offer of appointment made to the applicant in the instant case was outright wrong and illegal because the post did not exist at the relevant time.
20. To the contrary, respondents have relied upon the case of Shekhar Ghosh versus Union of India & Another (supra) wherein their Lordships have held that where a mistake has been made, its rectification should be made at the earliest possible. The applicant in the said case had been appointed as Khallasi at Kota Railway Station of Western Railway Administration in 1981 where some of the employees had challenged the promotion granted to the applicant as not being a regular one. The Senior Divisional Officer, Kota had arrived at a finding that his original post was Khallasi in Wagon Repair Shop, Kota and his lien had been cancelled. He was, therefore, directed to be repatriated. The Honble Supreme Court has held as under:-
14. A post decisional hearing was not called for as the disciplinary authority had already made up its mind before giving an opportunity of hearing. Such a post-decisional hearing in a case of this nature is not contemplated in law. The result of such hearing was a foregone conclusion.
xxx xxx xxx
16. We are, however, not oblivious of the fact that there is some shift in the concept of principles of natural justice which has been noticed by this Court in P.D. Agrawal v. State Bank of India & Ors., 2006 (5) SCALE 54 in the following terms:
"The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula_"
17. It is not denied or disputed that even when a mistake is sought to be rectified, if by reason thereof, an employee has to suffer civil consequences ordinarily the principles of natural justice are required to be complied with. It was so held in Ram Ujarey v. Union of India [(1999) 1 SCC 685] in the following terms:-
"17. There is yet another infirmity in the impugned order of reversion. The appellant had been allowed the benefit of service rendered by him as Coal Khalasi in the Loco Department from 1964 to 1972 as that period was counted towards his seniority and it was on that basis that he was called for the trade tests which the appellant had passed and was, thereafter, promoted to the posts of Semi-skilled Fitter and Skilled Fitter. If the benefit of service rendered by him from 1964 to 1972 was intended to be withdrawn and promotion orders were to be cancelled as having been passed on account of mistake, the respondents ought to have first given an opportunity of hearing to the appellant. The appellant having earned two promotions after having passed the trade tests, could not have been legally reverted two steps below and brought back to the post of Khalasi without being informed that the period of service rendered by him from 1964 to 1972 could not be counted towards his seniority and, therefore, the promotion orders would be cancelled. In a situation of this nature, it was not open to the respondents to have made up their mind unilaterally on facts which could have been shown by the appellant to be not correct but this chance never came as the appellant, at no stage, was informed of the action which the respondents intended to take against him."
18. Curiously Respondents in their counter-affidavits filed before the Tribunal and the High Court did not raise any plea of rectification of any mistake. It was also not stated in the show cause notice issued to the appellant. Only a plea of mistake was taken for the first time before the Tribunal, but no plea was taken that it was entitled to rectify the same or his order impugned before it was capable of being rectified. Thus, it was not a case where an opportunity of hearing was given to Appellant on the premise that a mistake had been committed by the authorities of the first respondent and the same was required to be rectified.
19. If a mistake is to be rectified the same should be done as expeditiously as possible. [See Board of Secondary Education, Assam v. Mohd. Sarjumma (2003) 12 SCC 408]
20. We are not oblivious that in Ram Chandra Tripathi v. U.P. Public Services Tribunal IV and Others [(1994) 5 SCC 180], an order passed by way of a mistake was permitted to be corrected as the same was done in violation of the order of injunction. In such a situation only, this Court held that an opportunity of being heard for correcting such mistake would not arise because there would not have been any occasion to take one view or the other in the matter on the basis of representation to be made by the affected employee.
21. It is also not a case where a mistake was apparent on the face of the records and, thus, compliance of the principles of natural justice would not have made any difference as was in the case of Smt. Ratna Sen nee Roy v. The State of West Bengal & Ors. [1995 (1) Cal. LT 462].
22. Requirements to comply with the principles of natural justice would, therefore, vary from case to case. If upon giving an opportunity of hearing to an affected employee, it is possible to arrive at a different finding, the principles of natural justice must be complied with. We may notice that recently in Union of India & Ors. v. Bikash Kuanar [2006 (10) SCALE 86], a Division Bench of this Court opined:-
"It is now trite that if a mistake is committed in passing an administrative order, the same may be rectified. Rectification of a mistake, however, may in a given situation require compliance of the principles of natural justice. It is only in a case where the mistake is apparent on the face of the records, a rectification thereof is permissible without giving any hearing to the aggrieved party."
21. Likewise, in the case of Union of India & Others versus Bikash Kuanar (supra), the Honble Supreme Court has held as under:-
12. The matter relating to appointment or recruitment of EDDA is not governed by any statute but by departmental instructions. It is now trite that if a mistake is committed in passing an administrative order, the same may be rectified. Rectification of a mistake, however, may in a given situation require compliance of the principles of natural justice. It is only in a case where the mistake is apparent on the face of the records, a rectification thereof is permissible without giving any hearing to the aggrieved party.
22. In the instant case also, we find that there is an obvious mistake made by the appointing authority. Once the order dated 30.04.2010 and 12.05.2010 had been issued, the post in question ceased to exist, even then the appointing authority had made the appointment. We do not find anywhere in these circulars that they have made any exception to the advertisement in the pipeline. To this extent, we do not agree with the arguments of the learned counsel for the applicant that in absence of these provisions in the recruitment rules, the appointing authority was entitled to make the appointment in the pipeline in respect of the applicant. To the contrary, it is apparent that the appointing authority had gone ahead with the appointment despite being fully aware that the posts had ceased to exist. We are also of the view that appointment in this regard is ab initio wrong and gives no rise to any rights of the applicant. The respondent authorities have rightly taken the course of action to rectify the situation when it came to their notice and rightly so. The fact that they did not issue notice to the applicant was because the appointment had not been made and the posts were not in existent. We further find that the judgments relied upon by the applicant are dissimilar to the facts of this case, and, hence, not applicable to the facts of the present case. Besides that, we are of the view that the appointment of the applicants against Group D posts, which were not in existence at the time of their appointment in view of acceptance of the 6th CPC report, and further the same being in derogation of the instructions issued by the Government of India, does not vest the applicants with any legal right to continue on the posts. It is also evident from the letter of appointment that the appointment of the applicants is purely temporary and was liable to be terminated on one months notice on either side in accordance with the provisions of the CCS (Temporary Service) Rules, 1965. Rule 5(1) of the Rules of 1965 provides as under:
5. Termination of Temporary Service (1) (a) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the Appointing Authority or by the Appointing Authority to the Government servant;
(b) the period of such notice shall be one month:
Provided that the service of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services or, as the case may be, for the period by which such notice falls short of one month. A perusal of the aforesaid provision clearly indicates that a temporary appointee could be terminated from service only after giving one months notice or a months salary in lieu thereof. The Apex Court in the matter of State of Uttar Pradesh & another v Kaushal Kishore Shukla [(1991) 1 SCC 691] pertaining to termination of service under the provisions of the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975, provisions whereof are pari materia to the CCS (Temporary Service) Rules, 1965, approved the order of termination being issued under the relevant Rules of 1975. In view of the enunciation of law, we are constrained to hold that these OAs being bereft of merit, deserve to be dismissed.
23. In the result, these Applications fail and the same are dismissed, but without costs. A copy of this order be kept in the respective files of the OAs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/