# Hasnain Ahmad v. State of U.P. and Others which was taken to be

- **Citation:** (1999) 2 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hasnain-ahmad-v-state-of-u-p-and-others-which-was-taken-to-be-39189
- **Pages:** 7

## Text

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By the Court

1. These writ petitions are knit together in that common question of
law and facts are involved and with the consent of the parties counsel
they were heard together for convenient disposal by a common
judgment. Writ petition No.17836, Pramod Kumar Yadav Vs. State
of U.P. and others shall be the leading file.

2. Stated briefly the facts are that the petitioners Pramod Kumar
Yadav, Gyanendra Kumar Shukla and Prashat Kumar were
appointed Registration Clerk in the office of Sub Registrar, Jhansi in
accordance with the provisions contained in the U.P. Registration
Department (District Establishment) Ministerial Service Rules, 1978
as it stood prior to its amendment by Registration Department
(District Establishment) Ministerial Service(First Amendment)
Rules, 1991. Their services were terminated by identically worded
separate orders dated June 15, 1991. These writ petitions were filed
challenging the orders of termination. The petitions came to be
dismissed along with a bunch of other writ petitions filed by
1998
------
November, 26
THE INDIAN LAW REPORTS [1999
2
adhoc/daily rated Registration Clerks in view of the order passed by
the Division Bench in Civil Misc. Writ Petition No.582 of 1991,
Hasnain Ahmad Vs. State of U.P. and Others which was taken to be
the leading case among the bunch of the writ petitions filed by
adhoc/daily rated Registration Clerks. The matter was taken upto the
Supreme Court. The Supreme Court dismissed the Special Leave
Petition but a Review Petition was filed and it was pointed out on
behalf of the petitioners that they were appointed on regular basis
and their case was not covered by the judgment rendered by the
Division Bench in the case of Hasnain Ahmad(supra). The Supreme
Court vide its judgment and order dated 26.9.97 allowed the appeal
and set aside the order of the High Court dismissing the writ petition
and remitted the matter back to this Court for consideration. That is
how the matter has again came up for disposal.

3. I have heard Sri M.D. Singh, learned counsel appearing for the
petitioners and Sri S.N. Upadhyay representing the respondents.

4. Learned counsel appearing for the petitioner submitted that the
impugned order is vitiated, interalia, for the reasons; firstly, that it
has been passed in breac of audialteram partem principles of natural
justice; and secondly, that it is arbitrary and lacks reasons. In
opposition the counsel appearing for the respondents urged that the
State Government issued a telex dated 8.2.1991 restraining all the
District Registrars from making any kind of appointments even then
the District Registrar made the appointments of the petitioners and
that too without following the procedure and hence there services
were rightly terminated. In rejoinder it was urged for the petitioners
that the I.G. Registration, it seems from the supplementary counter
affidavit, erroneously assurned that the procedure prescribed by law
was not followed in making the appointments.

5. I have given my anxious consideration to the submissions made
across the bar. The telex dated 8.2.1991 referred to in para 8 of the
supplementary counter affidavit dated 23rd day of August, 1994 filed
after the conclusion of the arguments has not been brought on record.
In the absence of the telex dated 8.2.1991 being brought on record, it
came be said with any amount of certainty that the alleged ban was
intended to cover appointments on the post in question, the process
of selection to which posts had already commenced. The question
whether the appointments were made in the teeth of the bar is a
question of fact. Without giving an opportunity of showing cause,
the services of the petitioners ought not to have been terminated on
1998
------
P.K.Yadav
 Vs.
State of U.P.
& others
------
S.R.Singh, J.
2 All.] ALLAHABAD SERIES
3
the unilateral assumption that the appointments were made in the
teeth of the ban order. Basudeo Tiwari Vs. Sido Kanhu University
and others, JT 1998(6) 464 is an authority on the point In that case
while reiterating the principle of natural justice as enunciated in
Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress, JT
1990(3) SC 725; Mohinder Singh Gill and another Vs. The Chief
Election Commissioner and others, AIR 1978 SC 851; and S.L.
Kapoor Vs. Jagmohan and others, AIR 1981 SC 136, the Apex Court
held as under:-

"In order to arrive at a conclusion that an
appointment is contrary to the provisions of the Act,
status, rules or regulations etc., a finding has to be
recorded and unless such a finding is recorded, the
termination cannot be made, but to arrive at such a
conclusion necessarily an enquiry will have to be
made as to whether such appointment was contrary to
the provsions of the Act etc. If in a given case such
exercise is absent, the condition precedent stands
unfulfilled. To arrive at such a finding necessarily
enquiry will have to be held and in holding such an
enquiry the person whose appointment is under
enquiry will have to be issued to him. If notice is not
given to him then it is like playing Hamlet without the
price of Denmark, that is, if the employee concerned
whose rights are affected, is not given notice of such a
proceeding and a conclusion is drawn in his absence,
such a conclusion would not be just, fair or reasonable
as notice by this Court in D.T.C. Mazdoor Sabha's
case. In such an event, we have to hold that in the
provision there is an implied requirement of hearing
for the purpose of arriving at a conclusion that an
appointment had been made contrary to the Act,
statue, rule orregulation etc. and it is only on such a
conclusion being drawn, the services of the person
could be terminated witout further notice."

6. Shrawan Kumar Jha and others Vs. State of Bihar and others,
1991 Supp. (1) S.C.C.330 was a case where appointments of certain
Assistant Teachers made by the District Superintendent of
Education, Dhanbad were cancelled vide order dated 28.5.1988. The
order was upheld by the High Court. In Supreme Court it was argued
for the respondents therein in support of the order of cancellation,
1998
------
P.K.Yadav
 Vs.
State of U.P.
& others
------
S.R.Singh, J.
THE INDIAN LAW REPORTS [1999
4
that the appointments had been cancelled because the District
Superintendent of Education had no authority to make the
appointments therein support of the order of cancellation, that the
appointments had been cancelled because the District Superintendent
of Education had no authority to make the appointments. On behalf
of the appellants therein it was contended that the order of
cancellation passed in breach of natural justice was void. The
Supreme Court held as under :

"In the facts and circumstances of the case we are of
the view that the appellant should have been given an
opportunity
of
hearing
before
canceling
their
appointments. Admittedly, no such opportunity was
afforded to them. It is well settled that no order to the
detriment of the appellants could be passed without
complying with the rules of natural justice."

7. In Shridhar Vs. Nagar Palika, Jaunpur and others, A.I.R. 1990
S.C. 307 the appointment of the appellant therein on the post of Tax
Inspector in the Municipal Board, Jaunpur was cancelled by the
Divisional Commissioner, Varanasi on the ground that the post ought
to have been filled by promotion of one Hari Mohan, senior most
Tax Collector working in the Municipal Board, Jaunpur. The High
Court affirmed the order of the Commissioner on the finding that the
appellant'' appointment was made in violation of the Government
order dated 10.4.1950. The Supreme Court held as under:-

"The High Court committed serious error in upholding
the order of the Commissioner dated 13.2.80 in seting
aside the appellant's appointment without giving any
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
1998
------
P.K.Yadav
 Vs.
State of U.P.
& others
------
S.R.Singh, J.
2 All.] ALLAHABAD SERIES
5
appointment. In this view, Orders of the High Court
and the Commissioner are not sustainable in law."

8. Upon consideration of the authorities, aforestated, I am of the
considered view that the order impugned herein having been passed
in breach of principles of natural justice cannot be sustained.

9. The second question is as to whether the appointments were made
by following the procedure prescribed by law. In this connection it
would be apt and proper to quote the submissions made on behalf of
the
parties
before
the
Hon'ble
Supreme
Court
and
the
observations/directions made in the judgment dated 27.9.1995
remitting the matter back to this Court as under:-

"It has been urged on behalf of the appellant that his
case differs from other cases dealt with by the High
Court inasmuch as he had been selected for regular
appointment
by
a
duly
constituted
Selection
Committee in accordance with the rules and the High
Court has not considered this aspect of the matter. In
the counter affidavit that has been filed on behalf of
the respondents before this Court, it has not been
disputed that the Selection Committee was duly
constituted by the District Registrar, District Jhansi on
February 24, 1991 but it is asserted that while doing
so the District Registrar, District Jhansi, did not
comply with the mandatory provisions of Rule 22 of
the Subordinate Offices Ministerial Staff (Direct
Recruitment) Rules, 1975 which had been replaced by
the Subordinate Offices Ministerial Staff(Direct
Recruitment) Rules,1985 as amended upto date and
thus there was defect in the procedure of the said
selection and the selection was void. This questions
has not been gone into by the High Court while
dismissing the writ petition of the appellant. It is a
question which should have been considered by the
High Court before dismissing the writ petition of the
appellant."

10. The decisions aforestated particularly Basudeo Tiwari squarely
meet the argument advanced in justification of the impugned orders
on the ground that the procedure laid down in Rule 22 of the relevant
service Rules was not followed.
1998
------
P.K.Yadav
 Vs.
State of U.P.
& others
------
S.R.Singh, J.
THE INDIAN LAW REPORTS [1999
6

11. On merits there is no substance in the submission that the
procedure laid down in Rule 22 was not followed. In order to
appreciate the submission it would be apt to quote rule 22 as under:

"Rule 22:- That the appointing authority shall
determine the number of vacancies to be filled during
the course of the year as also the vacancies to be
reserved under Rule 7. The vacancies shall be notified
to employment exchange. The appointing authority
may also invite application directly from persons who
have their names registered in the employment
exchange. For this purpose, appointing authority shall
ensure and advertisement in a local daily newspaper
besides pasting a notice on the Notice Board. All such
applications
shall
be
placed
before
selection
Committee."

12. The District Registrar was admittedly the appointing authority
prior to 20.3.1991 with effect from which date the rules were
amended and IG Registration was made 'appointing authority'. From
the averments made in the counter affidavit filed by Dewaki Nandan
Dwivedi, the then Sub Registrar, Jhansi and the observations made
by the Apex Court in its judgment dated 27.9.1995 it would be
abundantly clear that the petitioners were selected for regular
appointment by a duly constituted Selection Committee in
accordance with the Rules. The only controversy that was to be
decided by this Court as per direction given by the Apex Court in its
judgment dated 27.9.1995 was whether the provisions under Rule 22
of the Rules aforesaid were followed. Sri M.D. Singh counsel for the
petitioner submitted that after determining the vacancies the
appointing authority notified them to the Employment Exchange as
required by Rule 22 of the Rules as it then stood. This fact has not
been disputed by Sri S.N. Upadhyay, learned counsel appearing for
the respondent. Concededly the vacancies were notified to the
Employment Exchange as visualized by the first part of rule 22 of
the Rules. The second part of rule 22 in my opinion gives a
discretion to the appointing authority to invite applications from the
persons whose names are entered in the Employment Exchange by
advertising the vacancies in newspapers. Failure to issue
advertisement in the newspaper as required by the second part of rule
22, in the circumstances of the present case, would not vitiate the
appointments which were made by the appointing authority on the
1998
------
P.K.Yadav
 Vs.
State of U.P.
& others
------
S.R.Singh, J.
2 All.] ALLAHABAD SERIES
7
recommendation made by a duly constituted Selection Committee
after notifying the vacancies to the Employment Exchange.

In view of the foregoing discussion the petitions succeed and are
allowed. Impugned orders are quashed. Petitioners shall be entitled
to full back salary and continuity in service. Respondents are
directed to act accordingly.

Petitions Allowed.

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By the Court

1. These are two identical connected writ petitions by which the
order dated 19.06 .1997 passed by the District Inspector of Schools
(for short DIOS) Azamgarh has been challenged. The difference in
the two writ petitions is that over and above the relief claimed in
civil Misc. Writ No. 21044 of 1997 an additional prayer for
1999
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February, 1