2025 INSC 176
SUPREME COURT OF INDIA
(HON’BLE
PANKAJ MITHAL, J. AND HON’BLE SANDEEP MEHTA, JJ.)
AMRIT YADAV
Petitioner
VERSUS
STATE OF JHARKHAND
Respondent
(Arising
out of SLP(Civil) No(s). 6120-6121 of 2023) With Civil Appeal No(S). 13952 Of
2024 (Arising Out Of Slp(Civil) No(S). 3203 Of 2023) Civil Appeal No(S). 13955
Of 2024 (Arising Out Of Slp(Civil) No(S). 6118 Of 2023) Civil Appeal No(S).
13953 Of 2024 (Arising Out Of Slp(Civil) No(S). 3303 Of 2023) Civil Appeal
No(S). 13954 Of 2024 (Arising Out Of Slp(Civil) No(S). 3399 Of 2023)-Decided on
10-02-2025
Service Law
(A)
Constitution of India, Article 14 and 16 – Service Law - Recruitment - Whether the
advertisement dated 29th July, 2010 issued by respondent No. 4 and appointment
process carried out in pursuance thereof, was valid in the eyes of law? -
Advertisement dated 29th July, 2010, issued by respondent No. 4 is completely
silent on the aspect of total number of posts and the number of reserved quota
and general quota posts – Held that if the State chooses not to provide
reservation, that decision must also be conveyed through the advertisement
along with the afore-mentioned lists of inclusions - Any appointment made in
violation of the statutory rules as well as the mandate of Articles
14 and 16 of the Constitution would be a nullity in law - Entire
recruitment process initiated for the subject posts, in furtherance of the
advertisement dated 29th July, 2010, is in violation of both the legal
precedents and settled law - Therefore, the advertisement dated 29th July,
2010, issued by respondent No. 4 was not a valid advertisement inviting
applications for public employment and is thus, a nullity in law.
(Para 23 and 24)
(B)
Constitution of India, Article 14 and 16 – Service Law – Appointment – Challenge as to –
Necessary parties - Principles of natural justice – Useless formality theory -
Whether the direction issued by the High Court vide order dated 12th September,
2018 was justified considering the fact that the candidates earlier appointed
to the subject posts were neither impleaded as party nor were heard before the
issuance of a direction that adversely affected their service? - Division Bench
in the first impugned order dated 7th November, 2019, had confirmed the
directions passed by the learned Single Judge to the respondent-State to
prepare a fresh panel of selected candidates without affording
any opportunity of hearing to the candidates, who were earlier declared
successful by the respondent-State and were holding the subject posts -
Subsequently, the respondent-State relieved the appellant- employee and other
candidates selected de hors the rules and terminated their services vide order
dated 7th December, 2020 – Held that since the very selection and appointment
of the appellant-employee was a nullity in the eyes of law, the learned Single
Judge committed no error in directing the respondent-State to prepare fresh
panel of selected candidates without hearing the candidates who were likely to
get affected – When the appointment of the candidates is a nullity in law
making them disentitled to hold the posts, the principles of natural justice
were not required to be complied with, particularly when the same would be
nothing short of an exercise in futility.
(Para
30 and 31)
JUDGMENT
Mehta, J.:-
1.
The present appeals by special leave, are preferred by the appellant[Hereinafter, referred to as
“appellant-employee”.] , assailing the following two judgments rendered by
the Division Bench of the High Court of Jharkhand at Ranchi[Hereinafter referred to as “High Court”.]: -
i) Judgment dated 7th November, 2019 in LPA
No. 26 of 2019, whereby the learned Division Bench dismissed the intra-court
appeal preferred by the respondent-State against the common judgment of learned
Single Judge in WP(S) No. 6709 of 2017 and other connected petitions[WP (S) Nos. 789 of 2018, 1257 of 2018, 1278
of 2018, 1342 of 2018, 1638 of 2018, 1757 of 2018, 544 of 2018, 1007 of 2018,
1915 of 2018, 1926 of 2018, 1893 of 2018 and 7047 of 2017.], who vide order
dated 12th September, 2018, had directed the respondent-State to make a fresh
panel for appointment to the post of Class-IV employees as per the conditions
stipulated in the advertisement dated 29th July, 2010. (Hereinafter, referred
to as “first impugned order”).
ii) Judgment dated
24th November, 2022 in batch of Letter Patent Appeals[LPA Nos. 305 of 2022, 197 of 2022, 185 of 2022, 186 of 2022 and 201 of
2022.] , whereby, the learned Division Bench dismissed the intra-court
appeals (one amongst them filed by the appellant-employee) against the judgment
dated 9th March, 2022 passed by the learned Single Judge who vide common order
passed in batch of writ petitions[WP(S)
Nos. 4440 of 2020, 187 of 2021, 4132 of 2020, 2219 of 2021, 4358 of 2020, 4363
of 2020,4405 of 2020, 4407 of 2020 and 2244 of 2021.], had refused to
interfere with the order of termination issued by respondent-State.
(Hereinafter, referred to as “second impugned order”).
Factual
Matrix: -
2.
The Deputy Commissioner, Palamu[Hereinafter
referred to as “respondent no. 4”.] published an advertisement dated 29th July,
2010, inviting applications for appointment to the post of Class IV employees[For short “subject posts”.]. The
language of said advertisement is germane to the controversy at hand and the
same is extracted below: -
“Date: 29 July 2010
(Ranchi)
Last Date of
application
submission 21/8/2010
OFFICE OF THE DISTRICT
MAGISTRATE PALAMU DISTRICT, NAZARAT BRANCH
Collectorate Palamu (Information related to making the
fourth panel) Instructions for appointment to the post of class IV employee
Advertisement Number 1 Vacancy for the grade IV post - the eligible and
interested candidates are invited to apply in subscribed application form to
the vacant posts of Class IV category by sending application to the appropriate
offices of the State Government in Palamu District on schedule date.
It will be mandatory
to the candidate in list of the category to submit the certificate along with
the application in printed form before the District Nazarat Branch, Palamu
Collectorate till the last date for submission of application. After the last
date, the application will not be considered without the eligible proof of
deprivation.
Applicants are
instructed to appear in the examination on the basis of admission eligibility,
the cycling test of the qualified candidate will be held on schedule to qualify
in compulsory basis. The date of examination will be announced later. The
complete details with terms and conditions to apply for the post in application
are as follows.
1. Name of the post -
IV Grade
2. Educational
Qualification - VIII Passed
3. The candidate
should must be eligible in cycling (there the cycle test should be organized to
qualify on compulsory basis)
4. The candidate
should be in sound health (should be compulsory to submit the medical fitness
certificate obtained within last 6 months)
5. The candidate over
to the maximum age should not be consider to apply.
6. The applicant for
general category is eligible to apply other than the candidate in schedule
caste and schedule tribe cast in age relaxation in between 18 to 27 years and
for backward class / extremely backward class should be eligible to apply in
age of 18 to 28 years and for female candidate in unreserved and other backward
and scheduled and Scheduled Tribe Caste should apply with age relaxation 18 to
40 years.
7. The candidate
belong from the local areas should be given to preference, will be eligible to
apply and the candidate working in government offices should be in preference
to apply from the date of publication of the advertisement in status of
weightage calculation. For which weightage will be given for service. It will
be mandatory for the daily wage to submit the certificate obtained or from the
employer.
8. Preference will be
given to local applicants.
9. No traveling
allowance will be given to the candidates appearing in the final examination.
10. The emplacement
will be effective for one year from the date of publication.
11. It is only related
to the preparation of advertisement panels.
12. Instructions given
from time to time to the district by the Jharkhand Government in this context
should be applicable.
13. Information will
be provided in the Devanagari script prescribed letter form and educational and
other qualification proofs, eligible age certificate, reservation certificate,
caste certificate issued by the employment office, disability certificate issued
by the civil surgeon of the district (if the applicant is disabled) and
residence certificate, caste proof issued by the eligible sub divisional
officer / appropriate office by the Government of Jharkhand, It is mandatory
for the candidate to attach the photocopy of the certificate (issued within six
months) from the concerned authority including two passport size photographs
should must be submit.
14. It will be
mandatory to attach a bank draft of Rs.100 in the name of Deputy Collector,
Palamu Secretariat along with 10x10 size envelope.
15. The decision of
the District Selection Committee regarding panel creation will be final.
16. The entire
recruitment process will be completely transparent. And all action will be
taken according to the rules of the government. Therefore, under the public
interest, even in your own interest, the broker should not come under the
influence of the middleman. The candidate is warned to do not approach or
recommend at any level. If any such attempt is detected, the form will
automatically be canceled and legal action will be taken against the candidate.
Sd/-
The Deputy
Commissioner Palamu”
3.
Pursuant to the issuance of the above advertisement, an examination was
conducted on 5th November, 2017. Subsequently, respondent No. 4 issued a press
release[Memorandum No. 842 of 2017.]
dated 9th November, 2017, stating that before the final panel of selected
candidates is prepared, the candidates would be required to remain present in
the District Establishment Section, Palamu for the purpose of counselling. Upon
completion of the counselling process, the District Education Officer[Hereinafter, referred to as “respondent no.
5”.] vide office order[Memo no. 399.] dated 9th March, 2018, issued appointment letter to the
successful candidates, including the appellant herein. Meanwhile, an FIR [FIR No. 382 of 2017.] came to be
registered at Police Station Daltonganj Town, District Palamu alleging rampant
corruption and mass scale cheating in the examination conducted for the subject
posts on 5th November, 2017.
4.
Aggrieved by the publication of the list of successful candidates, some
non-selected candidates preferred writ petitions[Supra note 3.] before the High Court which came to be allowed vide
order dated 12th September, 2018, directing the respondent-State to prepare a
fresh merit list as per the marks obtained in the written examination conducted
on 5th November, 2017, without counting the marks awarded to the candidates in
interview. The learned Single Judge opined that the appointment was not carried
out in accordance with the stipulations made in the advertisement dated 29th
July, 2010, as there was admittedly, no provision for interview in the
advertisement which was conducted by the respondent-State. The learned Single
Judge further observed that the respondent-State had acted de hors the rules
and regulations while preparing the merit list by taking into account the
cumulative marks obtained by the candidates in written examination as well as
the interview.
5.
Aggrieved, the respondent-State preferred an intra-court appeal[LPA No. 26 of 2019.] assailing the
aforesaid order of the learned Single Judge. The Division Bench vide first
impugned order dated 7th November, 2019, dismissed the appeal and upheld the
order dated 12th September, 2018, passed by the learned Single Judge. Pursuant
to the aforesaid direction of learned Single Judge, respondent No. 5 vide
office order dated 7th December, 2020, relieved the appellant-employee and
other candidates who were purportedly selected de hors the rules and terminated
their service.
6.
The appellant-employee and other similarly aggrieved candidates assailed their
termination order by preferring writ petitions[Supra note 5.] before the High Court seeking issuance of a writ to
reinstate them in service. The learned Single Judge vide order dated 9th March,
2022, dismissed the batch of writ petitions, holding that no case for
interference was made out as admittedly, the respondent-State had changed the
rules of the game by introducing the interview round in the selection
process after the ball had been set rolling. The learned Single Judge further
held that the respondent-State had prepared the fresh panel of selected
candidates in compliance with the direction of the High Court in WP (S) No.
6709 of 2017 and other analogous petitions[Supra
note 3.], which stood affirmed in the first impugned order and hence, the
termination orders were valid in the eyes of law.
7.
Aggrieved, the appellant-employee and other similarly situated candidates
preferred a batch of intra-court appeals[Supra
note 4.] assailing the order dated 9th March, 2022, passed by the learned
Single Judge. The learned Division Bench, vide order dated 24th November, 2022,
dismissed these appeals and held that as the decision with respect to
preparation of fresh panel of selected candidates had attained finality in view
of the judgment of the Coordinate Bench, the respondent-State was justified in
issuing the order terminating the services of the appellant-employee and other
similarly situated candidates for being less meritorious.
8.
Aggrieved, the appellant-employee has approached this Court by way of these
appeals by special leave assailing the impugned orders passed by the learned
Division Bench of the High Court. Submissions on behalf of the
appellant-employee: -
9.
Learned senior counsel appearing for the appellant-employee strenuously
contended that the appellant-employee was duly selected and has been appointed
to the subject posts, purely on merit, vide Memorandum No. 399 dated 9th March,
2018, issued by the competent authority. There was no allegation of fraud or
misrepresentation on the part of the appellant-employee while seeking the appointment
on the post in question.
10.
It was submitted that pursuant to the valid appointment of the
appellant-employee, he has satisfactorily served the respondent-State for two
and a half years and has also completed his probation period. Further, the
learned counsel urged that as the appellant-employee has become over-age for
other Government jobs, a sympathetic view ought to be taken by setting aside
the termination order dated 7th December, 2020 issued by respondent No. 5.
11.
He further contended that the Division Bench grossly erred in issuing a
direction to the respondent-State to prepare a fresh panel of selected
candidates without impleading the affected persons, such as the
appellant-employee, as a party in the proceedings and thus, violated the principles
of natural justice. The non-selected candidates who had filed the writ
petitions had voluntarily refrained from appearing in the counselling process,
and hence, they lacked locus to challenge the recruitment process.
12.
Learned counsel concluded his submissions by imploring this Court to take a
sympathetic view and to accept the appeals, set aside the impugned judgments,
quash the termination order dated 7th December, 2020, and direct the
respondent-State to reinstate the appellant-employee in service. Submissions on
behalf of the respondent-State: -
13.
Per contra, learned counsel appearing on behalf of the respondent-State
contended that the impugned judgments do not suffer from any infirmity or
illegality. He contended that the fresh panel of selected candidates, was
prepared by the respondent- State in compliance with the direction of the High
Court vide order dated 12th September, 2018. Once the appointment of the
appellant-employee was found to be de hors the law, he cannot claim a preferential
right of continuing in service as against the candidates who were admittedly
higher in merit.
14.
Learned standing counsel further contended that the case of the
appellant-employee suffers from gross delay which remains unexplained as he is
laying challenge to judgment[First
impugned order.] of the Division Bench dated 7th November, 2019 after a
period of more than 3 years. As such, the appellant-employee is not entitled to
any relief. On these grounds, the learned Counsel for the respondent-State
implored this Court to dismiss the appeals and affirm the impugned judgments.
Issues:
-
15.
We have given our thoughtful consideration to the submissions advanced at bar
and have carefully gone through the impugned judgments and the material placed
on record.
16.
The core issues presented for adjudication before this Court in these appeals
are: -
(1) Whether the
advertisement dated 29th July, 2010 issued by respondent No. 4 and appointment
process carried out in pursuance thereof, was valid in the eyes of law?
(2) Whether the direction issued by the High
Court vide order dated 12th September, 2018 was justified considering the fact
that the candidates earlier appointed to the subject posts were neither
impleaded as party nor were heard before the issuance of a direction that
adversely affected their service?
Discussion and
Analysis: -
Issue No. 1: Whether
the advertisement dated 29th July, 2010 by respondent No. 4 and appointment
process carried out in pursuance thereof was valid in the eyes of law?
17.
To adjudge the validity of the recruitment process and the appointments made
there under for the subject posts, we deem it fit to consider the terms and
conditions of the advertisement dated 29th July, 2010, issued by respondent No.
4 on the touchstone of the precedents of this Court so as to find out whether
the same was in conformity with law or not.
18.
A three-Judge Bench of this Court in Renu v. District and Sessions Judge,
Tis Hazari Courts, Delhi, [(2014) 14 SCC
50.] discussed in detail the requirements of a valid advertisement and
observed thus:-
“16. Another important
requirement of public appointment is that of transparency. Therefore, the
advertisement must specify the number of posts available for selection and
recruitment. The qualifications and other eligibility criteria for such posts
should be explicitly provided and the schedule of recruitment process should be
published with certainty and clarity. The advertisement should also specify the
rules under which the selection is to be made and in absence of the rules, the
procedure under which the selection is likely to be undertaken. This is
necessary to prevent arbitrariness and to avoid change of criteria of selection
after the selection process is commenced, thereby unjustly benefiting someone
at the cost of others.”
(emphasis
supplied)
19.
Thus, the advertisements which fail to mention the number of posts available
for selection are invalid and illegal due to lack of transparency. This Court
further expounded in Renu(supra) that any appointment in violation of the
mandate of Articles 14 and 16 of the Constitution of India
is not only irregular but also illegal and cannot be sustained. It is a trite
law that a valid advertisement inviting applications for public employment must
include the total number of seats, the ratio of reserved and unreserved seats,
minimum qualification for the posts and procedural clarity with respect to the
type and manner of selection stages, i.e., written, oral examination and
interviews.
20.
Further, the position of law is settled that though there is no fundamental
right to claim reservation as Articles 16(4) and (4-A) of the
Constitution of India are in the nature of enabling provisions only and do not
mandate the State or its instrumentalities to provide reservation in every
selection process but inspite thereof, the State’s decision to not provide
reservation has to be based on some quantifiable data and valid reasoning.
21.
Reference in this regard may be made to this Court’s decision in Mukesh
Kumar v. State of Uttarakhand, [(2020) 3
SCC 1.] wherein, it was held that:-
“12. Articles
16(4) and 16(4-A) do not confer fundamental right to claim
reservations in promotion [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC
209]. By relying upon earlier judgments of this Court, it was held
in Ajit Singh (2) [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209]
that Articles 16(4) and 16(4-A) are in the nature of
enabling provisions, vesting a discretion on the State Government to consider
providing reservations, if the circumstances so warrant. It is settled law
that the State Government cannot be directed to provide reservations for
appointment in public posts [C.A. Rajendran v. Union of India, AIR 1968 SC
507]. Similarly, the State is not bound to make reservation for Scheduled
Castes and Scheduled Tribes in matters of promotions. However, if they wish to
exercise their discretion and make such provision, the State has to collect
quantifiable data showing inadequacy of representation of that class in public
services. If the decision of the State Government to provide reservations in
promotion is challenged, the State concerned shall have to place before the
Court the requisite quantifiable data and satisfy the Court that such
reservations became necessary on account of inadequacy of representation of
Scheduled Castes and Scheduled Tribes in a particular class or classes of posts
without affecting general efficiency of administration as mandated
by Article 335 of the Constitution.[M. Nagaraj v. Union of India,
(2006) 8 SCC 212]
13. Articles
16(4) and 16(4-A) empower the State to make reservation in
matters of appointment and promotion in favour of the Scheduled Castes and
Scheduled Tribes “if in the opinion of the State they are not adequately represented
in the services of the State”. It is for the State Government to decide whether
reservations are required in the matter of appointment and promotions to public
posts. The language in clauses (4) and (4-A) of Article 16 is clear,
according to which, the inadequacy of representation is a matter within the
subjective satisfaction of the State. The State can form its own opinion on the
basis of the material it has in its possession already or it may gather such
material through a Commission/ Committee, person or authority. All that is
required is that there must be some material on the basis of which the opinion
is formed. The Court should show due deference to the opinion of the State
which does not, however, mean that the opinion formed is beyond judicial
scrutiny altogether. The scope and reach of judicial scrutiny in matters within
the subjective satisfaction of the executive are extensively stated in Barium
Chemicals Ltd. v. Company Law Board [Barium Chemicals Ltd. v. Company Law
Board, AIR 1967 SC 295], which need not be reiterated. [Indra Sawhney v.
Union of India, 1992 Supp (3) SCC 217]” (emphasis supplied)
22.
Thus, it is imperative that the State must specifically mention in the
advertisement the total number of reserved and unreserved seats. However, if
the State does not intend to provide reservation, in view of the quantifiable
data indicating adequacy of representation, this aspect must also be
specifically mentioned in the advertisement.
23.
In the present case, the advertisement dated 29th July, 2010, issued by
respondent No. 4 is completely silent on the aspect of total number of posts
and the number of reserved quota and general quota posts. We are of the view
that if the State chooses not to provide reservation, that decision must also
be conveyed through the advertisement along with the afore-mentioned lists of
inclusions. This Court in the case of State of Karnataka v. Umadevi, [(2006) 4 SCC 1.] observed that any
appointment made in violation of the statutory rules as well as the mandate
of Articles 14 and 16 of the Constitution would be a
nullity in law.
24.
In the wake of the afore-mentioned judicial precedents, we are of the view that
the entire recruitment process initiated for the subject posts, in furtherance
of the advertisement dated 29th July, 2010, is in violation of both the legal
precedents and settled law. Therefore, we hold that the advertisement dated
29th July, 2010, issued by respondent No. 4 was not a valid advertisement
inviting applications for public employment and is thus, a nullity in law.
Issue No. 2: Whether the direction issued by the High Court vide order dated
12th September, 2018, was justified considering the fact that the candidates
earlier appointed to the subject posts were neither impleaded as party nor were
heard before the issuance of a direction that adversely affected their service?
25.
Before answering this issue, we deem it fit to discuss the background of this
case. The respondent-State had issued the advertisement dated 29th July, 2010,
in complete disregard to the precedents of this Court as well as in sheer
contravention of the mandate of Articles 14 and 16 of the
Constitution of India as discussed in the first issue. In pursuance of this
advertisement, the respondent-State has carried out the entire recruitment
process. The limited ground of challenge in the legal proceedings from which
the first impugned order emanates was that the petitioners therein had pleaded
foul-play on the part of the respondent-State, and contended that the rules of
the game had been changed by respondent-State by awarding marks to some
candidates in the interview round. The High Court in this regard was justified
in ordering preparation of a fresh panel of selected candidates on the basis of
the marks secured in the written examination, conducted on 5th November, 2017.
This decision has been upheld by the Division Bench in the first impugned order
dated 7th November, 2019 which has now attained finality as no further
challenge thereto was laid by either the respondent-State or the
appellant-employee at that time.
26.
Subsequently, the respondent-State prepared fresh panel of selected candidates.
However, the name of the appellant-employee was not included in the fresh
panel, for being lower in merit and his services were terminated by order dated
7th December, 2020. It is then that fresh writ petitions[Supra note 5.] came to be preferred by
the appellant-employee and other similarly situated candidates laying challenge
to order whereby their services were terminated. In our view, the
appellant-employee was precluded from invoking the jurisdiction of the learned
Single Judge who could not have interfered with the decision which had attained
finality after being upheld by the Division Bench in the first impugned order.
Until and unless, a review petition was filed against the first impugned order,
it provided finality with respect to the present advertisement.
27.
Hence, the learned Single Judge rightly dismissed the writ petitions filed by
the appellant-employee and other similarly situated candidates against their
termination order. No error whatsoever was committed by the learned Division
Bench in dismissing the appeal as it had clearly stated that the appellants
therein failed to lay challenge to the decision of the Coordinate Bench in the
first impugned order dated 7th November, 2019. The Division Bench in a fresh
round of litigation could not have reviewed the orders passed by a Coordinate
Bench in relation to the same controversy.
28.
It is before this Court, for the first time, that the appellant- employee has
laid challenge to the first impugned order dated 7th November, 2019, thus, the
only controversy that demands our attention is whether the Division Bench was
correct in directing the respondent-State to prepare fresh panel of selected
candidates without giving an opportunity of hearing to the candidates who were
likely to get affected by such direction.
29.
The position of law is crystallized on the aspect of compliance with the principles
of natural justice in both administrative spheres as well as judicial
decisions. It is trite law that the principles of natural justice cannot be
applied in any straitjacket formula and it is imperative to understand that
there are certain exceptions to their applicability. Reference in this regard
may be made to the decision of this Court in Dharampal Satyapal Ltd. v.
CCE, [(2015) 8 SCC 519.] wherein
it was held thus: -
“38. But that is not
the end of the matter. While the law on the principle of audi alteram partem
has progressed in the manner mentioned above, at the same time, the courts have
also repeatedly remarked that the principles of natural justice are very
flexible principles. They cannot be applied in any straitjacket formula. It all
depends upon the kind of functions performed and to the extent to which a
person is likely to be affected. For this reason, certain exceptions to the
aforesaid principles have been invoked under certain circumstances. For
example, the courts have held that it would be sufficient to allow a person to
make a representation and oral hearing may not be necessary in all cases,
though in some matters, depending upon the nature of the case, not only
full-fledged oral hearing but even cross-examination of witnesses is treated as
a necessary concomitant of the principles of natural justice. Likewise, in
service matters relating to major punishment by way of disciplinary action, the
requirement is very strict and full-fledged opportunity is envisaged under the
statutory rules as well. On the other hand, in those cases where there is an
admission of charge, even when no such formal inquiry is held, the punishment
based on such admission is upheld. It is for this reason, in certain
circumstances, even post-decisional hearing is held to be permissible. Further,
the courts have held that under certain circumstances principles of natural
justice may even be excluded by reason of diverse factors like time, place, the
apprehended danger and so on. …
40. In this behalf, we
need to notice one other exception which has been carved out to the aforesaid
principle by the courts. Even if it is found by the court that there is a
violation of principles of natural justice, the courts have held that it may
not be necessary to strike down the action and refer the matter back to the
authorities to take fresh decision after complying with the procedural
requirement in those cases where non-grant of hearing has not caused any
prejudice to the person against whom the action is taken. Therefore, every
violation of a facet of natural justice may not lead to the conclusion that the
order passed is always null and void. The validity of the order has to be
decided on the touchstone of “prejudice”. The ultimate test is always the same
viz. the test of prejudice or the test of fair hearing.”
(emphasis
supplied)
30.
In the present case, the Division Bench in the first impugned order dated 7th
November, 2019, had confirmed the directions passed by the learned Single Judge
to the respondent-State to prepare a fresh panel of selected candidates without
affording any opportunity of hearing to the candidates, who were earlier
declared successful by the respondent-State and were holding the subject posts.
Subsequently, the respondent-State relieved the appellant- employee and other
candidates selected de hors the rules and terminated their services vide order
dated 7th December, 2020.
31.
In our view, since the very selection and appointment of the appellant-employee
was a nullity in the eyes of law, the learned Single Judge committed no error
in directing the respondent-State to prepare fresh panel of selected candidates
without hearing the candidates who were likely to get affected. In this
regard, we are benefitted by the decision of this Court in Union of India
v. Raghuwar Pal Singh, [(2018) 15 SCC
463.] wherein, it was held that when the appointment of the candidates
is a nullity in law making them disentitled to hold the posts, the principles
of natural justice were not required to be complied with, particularly when the
same would be nothing short of an exercise in futility. The relevant portion is
extracted herein below: -
“20. For taking this
contention forward, we may assume, for the time being, that the then Director
Incharge H.S. Rathore, Agriculture Officer had the authority to issue a letter
of appointment. Nevertheless, he could do so only upon obtaining prior written
approval of the competent authority. 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 Tribunal has rightly held that in absence of prior
approval of the competent authority, the Director Incharge could not have
hastened issuance of the appointment letter. 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.
…
23. In State
of Manipur [State of Manipur v. Y. Token Singh, (2007) 5 SCC 65 : (2007) 2 SCC
(L&S) 107] , the appointment letters were cancelled on the ground that the
same were issued without the knowledge of the department of the State. The
Court after adverting to the reported decisions concluded that the candidates
were not entitled to hold the posts and in a case of such nature, principles of
natural justice were not required to be complied with, particularly when the
same would result in futility. …”
(emphasis
supplied)
32.
Hence, in view of the above principle and the factual scenario in the case at
hand, it is clear that if the subject appointments were ab-initio nullity in
the eyes of law, it was not incumbent on the learned Single Judge to pass the
order after hearing all the parties that were likely to be affected by such
decision, i.e., the candidates who were already appointed on the subject posts
including the appellant-employee.
33. Therefore, we are of the view that the
learned Single Judge did not commit any error while issuing a direction vide
order dated 12th September, 2018, for preparation of fresh panel of selected
candidates in consonance with the statutory rules and procedure prescribed in
the advertisement as it is clearly discernible from our discussion in the first
issue that the recruitment process was void ab-initio and ultra vires the
Constitution of India. Therefore, there was no need to comply with the
principles of natural justice as that would be nothing, but an exercise in
futility and the appellant- employee thus, cannot be allowed to claim prejudice
from the fact that he was neither impleaded nor heard before the issuance of a
direction affecting his service.
34.
With respect to the power of cancellation of the entire selection process, this
Court in M.P. State Coop. Bank Ltd. v. Nanuram Yadav, [(2007) 8 SCC 264.] held thus:-
“24. It is clear that
in the matter of public appointments, the following principles are to be
followed:
(1) The appointments
made without following the appropriate procedure under the rules/government
circulars and without advertisement or inviting applications from the open
market would amount to breach of Articles 14 and 16 of the
Constitution of India.
(2) Regularisation
cannot be a mode of appointment.
(3) An appointment
made in violation of the mandatory provisions of the statute and in particular,
ignoring the minimum educational qualification and other essential
qualification would be wholly illegal. Such illegality cannot be cured by
taking recourse to regularisation. (4) Those who come by back door should go
through that door. (5) No regularisation is permissible in exercise of the
statutory power conferred under Article 162 of the Constitution of
India if the appointments have been made in contravention of the statutory rules.
(6) The court should
not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief
played is so widespread and all pervasive, affecting the result, so as to make
it difficult to pick out the persons who have been unlawfully benefited or
wrongfully deprived of their selection, it will neither be possible nor
necessary to issue individual show-cause notice to each selectee. The only way
out would be to cancel the whole selection.
(8) When the entire
selection is stinking, conceived in fraud and delivered in deceit, individual
innocence has no place and the entire selection has to be set aside.”
(emphasis
supplied)
35.
Thus, it is clear that once the appointment process is declared to be a nullity
in law, every action taken in furtherance of such appointment process is also
illegal, and, therefore, the constitutional courts have jurisdiction to set
aside such appointments wholly and ab-initio. This power of the Court is not
curtailed even in a situation where a third-party right has been created in
those who have been offered appointment or have even joined the service.
36. This Court in State of U.P. v. U.P.
State Law Officers’ Assn., [(1994) 2 SCC
204.] while dealing with the back-door entries in public appointment
observed as under: -
“19. … The
appointments may, therefore, be made on considerations other than merit and
there exists no provision to prevent such appointments. The method of
appointment is indeed not calculated to ensure that the meritorious alone will
always be appointed or that the appointments made will not be on considerations
other than merit. In the absence of guidelines, the appointments may be made
purely on personal or political considerations, and be arbitrary. This being so
those who come to be appointed by such arbitrary procedure can hardly complain
if the termination of their appointment is equally arbitrary. Those who come by
the back door have to go by the same door. This is more so when the order of
appointment itself stipulates that the appointment is terminable at any time
without assigning any reason. Such appointments are made, accepted and
understood by both sides to be purely professional engagements till they last.
The fact that they are made by public bodies cannot vest them with additional
sanctity. Every appointment made to a public office, howsoever made, is not
necessarily vested with public sanctity. There is, therefore, no public
interest involved in saving all appointments irrespective of their mode. From
the inception some engagements and contracts may be the product of the
operation of the spoils system. There need be no legal anxiety to save them.”
(emphasis
supplied)
37.
It is, therefore, clear that a beneficiary of a back-door procedure cannot
claim proper treatment as per law when they come at the receiving end.
38.
In the present case, the appellant-employee, who had been appointed under the
advertisement dated 29th July, 2010, does not have any right on the subject
posts once it is concluded that the advertisement is itself void and is
declared illegal and unconstitutional. The candidates’ right to continue on
such posts is contingent upon the legality of the advertisement and the
recruitment process conducted in pursuance thereof.
39.
At this juncture, before parting, we deem it fit to note that public employment
is a duty entrusted by the Constitution of India with the State. Therefore, it
becomes imperative that the rigours of Articles
14 and 16 are not ignored by the State in relation to the matter
concerning public employment. Arbitrariness in public employment goes to the
very root of the fundamental right to equality. While no person can claim a
fundamental right to appointment, it does not mean that the State can be
allowed to act in an arbitrary or capricious manner. The State is accountable
to the public at large as well as the Constitution of India, which guarantees
equal and fair treatment to each person. Public employment process thus, must
always be fair, transparent, impartial and within the bounds of the
Constitution of India. Every citizen has a fundamental right to be treated
fairly and impartially, which is an appendage of right to equality
under Article 14 of the Constitution of India. A violation of this
guarantee is liable to judicial scrutiny as well as criticism.
Conclusion: -
40.
In view of the peculiar facts of this case and discussion made hereinabove, we
do not deem it fit to delve into the observations made in the impugned
judgments as the subject matter dealt therein is different. The question with
respect to the illegality of the recruitment process was not raised in any of
the proceedings before the Courts below. On the other hand, it was here, for
the first time, before this Court, that the appellant-employee have laid
challenge to the first impugned order.
41.
Resultantly, the appeals stand disposed of with the following directions: -
i. The advertisement
dated 29th July, 2010, issued by respondent No. 4 and all the consequential
proceedings conducted in pursuance thereof are hereby quashed for being
violative of Articles 14 and 16 and judicial precedents of
this Court.
ii. All the
appointments made in furtherance of the direction of the High Court dated 12th
September, 2018, with respect to the subject posts are quashed.
iii. The
respondent-State shall issue a fresh advertisement, compliant with the
constitutional mandate and in accordance with the extant Rules and the
observations made hereinabove. Thereafter, the recruitment process shall be
re-conducted in accordance with law for the subject posts.
iv. In the interest of
justice, we direct that the fresh notification shall be issued in terms of our
direction(supra) within six months from today and will specifically provide
suitable age relaxation in order to accommodate all such aspirants, who would
have in the supervening period and during the pendency of the present
litigation crossed the age limit for selection on the subject posts.
42.
Parties are directed to bear their own costs.
43.
Pending application(s), if any, shall stand disposed of.
CIVIL APPEALS NO(S).
13952 OF 2024
CIVIL APPEALS NO(S). 13953 OF 2024
CIVIL APPEALS NO(S).
13954 OF 2024
CIVIL APPEALS NO(S).
13955 OF 2024
44.
In these appeals, the appellants have laid challenge only to the second
impugned order of the High Court dated 24th November, 2022. As we have quashed
the advertisement dated 29th July, 2010 and the consequential selection process
thereto in, the question involved in these appeals has become academic and
therefore, does not merit our interference.
45.
The appeals are accordingly dismissed. No costs.
46.
Pending application(s), if any, shall stand disposed of.
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