Court applied a special appeal judgment holding that appointment cancellation requires an opportunity of hearing. Petition partly allowed; matter remanded for fresh hearing and reasoned order.
Mandamus issued for fresh decision after hearing; order remanded to respondents to act within three months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 28
Case :- WRIT - A No. - 20652 of 2006
Petitioner :- Vinod Kumar And Others
Respondent :- State Of U.P. Thru' Prin. Secry., Rural Development & Ors. Counsel for Petitioner :- Bhoopendra Nath Singh Counsel for Respondent :- C.S.C.
Hon'ble Ajay Bhanot,J.
date, 24.6.2003 were issued to the petitioner in the case of Dheeraj Pal (supra). The termination order was passed for similar reasons on 30.1.2004. The said case of Dheeraj Pal (supra) was finally decided by judgement dated 4.9.2006, entered by this court. The said judgement dated 4.9.2006 rendered in Writ Petition No. 16077 of 2004 Dheeraj Pal Versus State of U.P. and others was taken in appeal. The said appeal was registered as Special Appeal Defective No. 1087 of 2007, State of U.P. and others Vs. Dheeraj Pal which was partly allowed. The relevant portion of the judgement dated 19.10.2010, passed in the aforesaid special appeal, is quoted below:-
"After hearing the learned counsel for the parties, we are of the opinion that the Learned Single Judge committed error in law in proceeding to decide the case on the premise that the petitioner's temporary services were terminated under the U.P. Temporary Government Servant (Termination of Service )Rules, 1975. Petitioner's services were not terminated on the ground of unsuitability. In fact, his appointment was cancelled on the ground that the Accounts Officer in the Office of District Development Officer was not authorised to make appointments. The petitioner could not be appointed on temporary and officiating basis and thus he could not be transferred. In any case his transfer order was cancelled after which he proceeded on medical leave which was also not admissible to him. The foundation of the impugned order is the illegal appointment and not unsuitability of the petitioner.
Where the appointment letter itself has been cancelled on the ground that the appointing authority is not competent for making appointment, the provisions of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 are
not attracted. In such case the petitioner is required to be given opportunity of hearing, as the order visits serious civil consequences.
It is also not denied by the State Appellant that the petitioner was not given any show-cause-notice nor any other order calling for show cause before cancelling his appointment. The impugned order dated 30.01.2004 was thus violative of principles of natural justice and is liable to be set aside on that ground.
The special appeal is partly allowed. The order dated 30th January, 2004 is set aside on the ground of violation of principles of natural justice. The State-appellant will give reasonable opportunity of hearing to the petitioner-respondent, which shall not be by way of or in the manner as provided for holding disciplinary enquiry. It will be open to the District Development Officer, Jaunpur to pass fresh order after hearing the petitioner-respondent.
In the facts and circumstances of the case we do not find it appropriate to give directions to re-instate the petitionerrespondent in service or for payment of arrears of salary for the period for which he has not worked. The state-appellant will take decision in the matter very expeditiously within three months' from the date a certified copy of the order is produced."
respondents authorities. A mandamus is issued to the respondents authorities commanding them to take a fresh decision in the matter after affording an opportunity of hearing to the petitioners. The petitioners shall submit a representation to the respondents authorities. The respondents authorities shall provide the petitioners with any material adverse to them, which is proposed to be relied upon and give them an opportunity to tender their defence. Thereafter the respondents authorities shall pass a reasoned and speaking order in accordance with law and consistent with the direction of this court in Special Appeal Defective No. 1087 of 2007, State of U.P. and others Vs. Dheeraj Pal within a period of three months from the date of submission of a certified copy of this order along-with a copy of the representation.
Order Date :- 1.8.2018
Pramod
3 issues framed by the court
Whether the impugned cancellation order of appointment, challenged in the present petition, requires a fresh hearing before the competent authority.
Whether the petition should be decided on merits by this Court at this stage.
How the direction to afford a reasonable opportunity of hearing must be framed.
Colour shows how this judgement treated each authority
Bimlesh Kumar Yadav and others Vs. State of U.P. and othersReferred¶9
Writ A No.5028 of 2004, Bimlesh Kumar Yadav and others Vs. State of U.P. and others
Dheeraj Pal Versus State of U.P. and othersApplied¶10
Writ Petition No. 16077 of 2004, Dheeraj Pal Versus State of U.P. and others
State of U.P. and others Vs. Dheeraj PalApplied¶10
Special Appeal Defective No. 1087 of 2007, State of U.P. and others Vs. Dheeraj Pal
Vinod Kumar And Others
State Of U.P.
Ajay Bhanot
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
