Prashant Kumar Vishwakarma Vs State of Chhattisgarh

By way of this petition, the petitioner is challenging the legality, validity and propriety of the order dated 27.01.2023 passed by respondent no.3, whereby the petitioner’s appointment has been cancelled without conducting any departmental enquiry and without affording any opportunity of hearing.

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By way of this petition, the petitioner has prayed for following reliefs:-

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“A writ and/or an order in the nature of writ of appropriate nature do issue commanding and directing the respondents to produce before this Hon'ble Courtall the relevant records pertaining to the case of the petitioners for its kind perusal.

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B. A writ and/or an order in the nature of writ of appropriate nature do issue quashing the order/letter dated 27.01.2023 (Annexure P-1) being illegal, arbitrary and not sustainable in law and further direct the respondents to restore the appointment of the petitioner with all benefits including the salary and other benefits of service.

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C. A writ and/or an order in the nature of writ of appropriate nature do issue directing the

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respondent no. 1 to produce the letter dated 19.01.2023 and quash the same being arbitrary, illegal and against the principle of natural justice.

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D. Any other relief which this Hon'ble Court may deem fit in the facts & circumstances of case.

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E. Cost of the petition may also be awarded.”

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The facts of the case are that the respondent authorities had duly sanctioned the post of Assistant Librarian for 17 districts in Chhattisgarh, including District Kondagaon, vide order dated 21.09.2017 and notification dated 21.05.2018, pursuant to which respondent no.5 issued an advertisement on 17.09.2018 inviting applications along with prescribed qualifications. The petitioner applied within time, fulfilled all eligibility criteria, and after publication of the merit list and consideration of objections, was appointed as Assistant Librarian on 13.09.2019 and subsequently regularized vide order dated 01.10.2021, after satisfactorily completing the probation period. The petitioner continuously discharged his duties diligently. However, without issuing any show cause notice, without supplying the letter dated 19.01.2023 referred to therein, and without conducting any departmental enquiry or affording opportunity of hearing, respondent no.3 abruptly issued the impugned order dated 27.01.2023 cancelling

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the petitioner’s appointment on the ground that the post was not sanctioned.

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Learned counsel for the petitioner submits that the impugned order dated 27.01.2023 is wholly illegal, arbitrary and unsustainable in law, as the petitioner was appointed to the post of Assistant Librarian after undergoing the due process of selection pursuant to the sanctioned posts notified by the respondents themselves for various districts including Kondagaon. Despite being a regularly appointed and subsequently regularized employee, the petitioner has been divested of service without issuance of any show-cause notice, without affording any opportunity of hearing, and without conducting any departmental enquiry, thereby violating the settled principles of natural justice. The impugned order proceeds on a vague allegation that the petitioner’s appointment was “against the law,” without disclosing any reasons, material particulars, or findings, and further relies on a letter dated 19.01.2023 which has never been supplied to the petitioner and is liable to be summoned. It is stated that such arbitrary action not only contravenes established service jurisprudence but also infringes the petitioner’s fundamental, constitutional and legal rights, warranting interference and quashment of the impugned order.

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On the other hand, learned counsel for the respondents supports the impugned order and submits that the present writ petition is

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wholly devoid of merit, as the petitioner’s appointment to the post of Assistant Librarian was void ab initio, having been made by an authority lacking jurisdiction and in complete absence of statutory rules. It is stated that though the post was sanctioned in 2017, no recruitment rules or appointing authority were notified at the relevant time, yet respondent no. 5 erroneously assumed the post to be one of direct recruitment and proceeded to issue an advertisement and appointment order. It is only upon notification of the rules on 05.03.2019 that the post was explicitly declared to be 100% promotional with the Joint Director as the competent appointing authority, making it clear that any appointment made prior thereto by the District Education Officer was wholly illegal and non est in law. Accordingly, the impugned order recalling the petitioner’s appointment is fully justified, as no individual can claim any right to continue on the basis of an order passed without jurisdiction, and even departmental proceedings have been initiated against the then District Education Officer for the said irregularity.

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I have heard learned counsel for the parties and perused the material available on record.

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From a perusal of the petition as well as the annexed documents, it appears that the post of District Librarian came into existence only on 21.09.2017 when the cadre was created. Prior to that date, there was no sanctioned setup for the post of Assistant

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Librarian. The petitioner, who was posted as Assistant Librarian in District Kondagaon, was appointed vide order dated 19.01.2023; however, this order was not passed in accordance with law. The State has taken the stand that the post of Assistant Librarian is a promotional post and that, at the relevant time, the DEO has no requisite instructions indicating that the Joint Director is the competent authority for granting such promotion. Respondent No. 5, the DEO, was under a misconception of fact in presuming that the post of Assistant Librarian was a direct-recruitment post and that he, as DEO, would be the appointing authority; based on this misunderstanding, he issued an advertisement to initiate the recruitment process for the post of Assistant Librarian. The rules governing the said post were notified for the first time on 05.03.2019, and these rules categorically state that the post of Assistant Librarian is 100% promotional and that the Joint Director is the appointing authority. Since the rules came into existence only on 05.03.2019, any appointment made prior to or contrary to the said rules such as the appointment of the petitioner is nonest in the eyes of law.

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It is a trite principle of law that when the initial order of appointment is made in violation of the prescribed rules, such an appointment, even if acted upon, cannot be treated as valid. Consequently, the petitioner cannot claim any relief or leniency on the basis of such an irregular appointment. The length of service rendered by the petitioner is not a ground to validate an

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appointment that was void from its inception. If the appointment is void ab initio, the mere fact that the petitioner has continued in service for several years does not alter the legal position.

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The Hon’ble Supreme Court in R. N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409 , and reiterated in State of Karnataka v. Uma Devi (3), (2006) 4 SCC 1 , and State of Bihar v. Upendra Narayan Singh, (2009) 5 SCC 65 , has categorically held that when the very basis of an initial appointment is void and non est in the eyes of law, such an appointment cannot be permitted to continue even if the employee has rendered long years of service. At best, the salary and monetary benefits already received by the employee may not be recoverable; however, he cannot be allowed to continue on a post obtained dehors the prescribed recruitment process.

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In the present case, since the initial appointment itself is not in accordance with law, the question of compliance with principles of natural justice does not arise, and no notice or opportunity of hearing is required to be issued to the petitioner.

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The Hon’ble Supreme Court in the matters of Mohammed Sartaj v. State of U.P., (2006) 2 SCC 315 & Ashok Kumar Sonkar v. Union of India, (2007) 4 SCC 54 has held that If the appointment itself is illegal, the question of issuing notice or granting an opportunity of hearing does not arise, because a void order does not require observance of natural justice.

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In a recent matter of Amrit Yadav vs. State of Jharkhand and others reported in 2025 SCC OnLine SC 280 , the Hon’ble Supreme Court has again reiterated the said principle while observing as under:-

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“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. CCER2, wherein it was held thus:-

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"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 aforesald 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

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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 fullfledged 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 be circumstances. even post-decisional hearing 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.

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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

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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)

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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 23, 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 hereinbelow:-

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"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 Nevertheless, he could do so only

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upon obtaining prior written letter of appointment. 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.

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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

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concluded that the candidates were not entitled to hold the posts and in a case of such nature, principles principles of natural justice were not required to be complied with, particularly when the same would result in futility.

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(emphasis supplied)

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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.”

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Accordingly, in view of the facts and circumstances of the case and the aforesaid settled legal position, the petition, being devoid of merit, is liable to be and is hereby dismissed .

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Sd/-

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(Amitendra Kishore Prasad) Judge

Vishakha

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HEAD-NOTE

“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.”

Prashant Kumar Vishwakarma v. State of Chhattisgarh

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Prashant Kumar Vishwakarma v. State of Chhattisgarh

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