1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1636 OF 2012
UNION OF INDIA AND ANR. …..APPELLANT(S)
:Versus:
RAGHUWAR PAL SINGH …..RESPONDENT(S)
J U D G M E N T
A.M. Khanwilkar, J.
1. The central questions posed in this appeal are: (i) whether
the appointment of the respondent to the post of Veterinary
Compounder, made by the Director Incharge at the relevant point
of time without approval of the Competent Authority, was a
nullity or a mere irregularity, which could be glossed over by the
department to avert disruption of his services and; (ii) in any
case, whether his services could be disrupted without giving him
an opportunity of hearing.
2. Briefly stated, the respondent was appointed to the post of
Veterinary Compounder in the Department of Animal Husbandry
2
and Dairying by one H.S. Rathore, the then Agriculture Officer,
Central Cattle Breeding Farms (CCBF), Suratgarh, who was
purportedly authorised only to look after the current duties of the
post of Director. The appointment was made in November 1999
on a provisional and temporary basis, pursuant to the
advertisement published in the newspaper on 15.10.1999.
However, by an office order dated 29th August, 2000 issued under
the signature of Dr. M.N. Haque, Director, the services of
respondent came to be terminated. The said order reads thus:
“Government of India
Ministry of Agriculture
Department of All & Dairying
……….Cattle Breeding Farm
SURATGARH – 335 804 (Raj.)
Dated the 29thAugust, 2000.
OFFICE ORDER
In compliance to Ministry‟s decision vide their letter No.8-
6/99-Admn.III dated 18thAugust, 2000, illegal appointment, of
Shri Raghuwar Pal Singh S/o Shri Himat Singh Shekhawat to the
post of Veterinary Compounder, made by the then Director
Incharge Shri H.S. Rathore, agriculture Officer, without
approval of the Competent Authority, vide this office order No.
14-62/99-CPS/1562 dated 24/30 November, 1999, is
CANCELLED with immediate effect. Accordingly, his service stands
terminated as per terms and conditions laid down in point v) & vi)
of the offer of appointment letter no.5-17/96-99/CPS/1308 dated
16/22 November, 1999.
(Dr. M.N. Haque)
DIRECTOR.”
(emphasis supplied)
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3. The respondent assailed the said order by filing Original
Application No.206 of 2000 before the Central Administrative
Tribunal, Jodhpur Bench at Jodhpur, inter alia, on the ground
that the appointment was made by the Board of Officers after
they had duly considered the matter and who were competent to
issue offer of appointment to the respondent. Further, if there
was any irregularity in the appointment process, that could have
been enquired into by the department, but without taking
recourse to any inquiry, the impugned termination order had
been issued. Such action was violative of Article 311 (2) of the
Constitution of India. According to the respondent, his
appointment was made after following all the formalities by the
department in a fair and transparent manner. He asserted that
the department was therefore, estopped from terminating his
services. Further, the impugned order is not a termination
simpliciter but would cause prejudice to the respondent. It is a
stigmatic order indicating that the appointment of the respondent
was illegal, for which reason also, principles of natural justice
ought to have been adhered to by the department.
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4. The appellants resisted the said Original Application, by
filing a detailed affidavit. According to the appellants, the
respondent had not approached the Court with clean hands. In
that, he has mentioned the numbers of the relevant documents,
which pertain to some other case and not his order of
appointment or termination. On merits, it was asserted by the
appellants that the appointment of the respondent to the post of
Veterinary Compounder was not as per the law. It was made by
the then Director Incharge H.S. Rathore, Agriculture Officer and
without approval of the competent authority. On the date of
issuing the appointment letter, Shri H.S. Rathore had no
authority to do so. It was asserted by the appellants that
pursuant to advertisement dated 15.10.1999, appointment
could be made only in conformity with the relevant Recruitment
Rules, as amended from time to time, titled „Central Cattle
Breeding Farm (Class III and IV Post) Recruitment Rules, 1969‟.
In terms of the said Rules, an interview was required to be
conducted by a Board comprising of three officers viz. Director of
the Farm, Senior-most Technical Officer and one Government
Officer of Central/State Government. However, the selection
process and interview in the present case were conducted by the
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Board unilaterally constituted by the said H.S. Rathore,
consisting of seven members including himself, being Director
Incharge. Further, he acted as the Chairman of the said Board.
The Board consisted of the following members:
“1) Shri H.S. Rathore, 1/C Director Chairman
2) Shri S.C. Aggarwal, Executive Member Engineer, Central
State Farm (SFCI Ltd.) (Not a Central Govt. office)
3) Shri CS. Manohar, Asso. Professor Member Veterinary
College, Bikaner (whereas a Veterinary Officer is already
there in the office itself)
4) Shri R.L. Aswal, Asstt. Stn. Engineer Member All India
Radio, Suratgarh
5) Dr. M.S. Rathore, Project Officer Member URMUL Dairy,
Chhattargarh (Which is not a Central/State office)
6) Shri Baldev Singh, Agriculture Asstt. Member CCBF,
Suratgarh (A Group „C‟ employee)
7) Shri A. Narsingh, Technical Asst. member CCBF (A Group
„C‟ employee)”
In other words, the said Board was not validly constituted.
Furthermore, the respondent was the son of the younger brotherin-law
of H.S. Rathore, the Director Incharge and Chairman of
the Board. The Chairman of the Board had direct relation with
and interest in the appointment of the respondent. It is then
stated that as per the prescribed procedure, appointment is
required to be made after obtaining prior approval from the
competent authority i.e. Ministry of Agriculture, Department of
Animal Husbandry and Dairying, New Delhi. That procedure was,
admittedly, not adhered to before issuing the letter of
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appointment to the respondent. For all these reasons, the
appointment of the respondent as made by the then Director
Incharge H.S. Rathore, Agriculture Officer, was without any
authority of law. It was a fraudulent appointment. When the
same was noticed by the department, soon thereafter, the subject
office order dated 29.08.2000 came to be issued. It was stated
that the appointment of two other candidates to the post of
Junior Mechanic and Tractor Helper made by H.S. Rathore as
Director Incharge also came to be cancelled by the department by
issuing similar termination order. In addition, a departmental
action has been initiated against H.S. Rathore for committing
serious misconduct and abusing his official position during the
relevant period. The appellants pointed out that one Dr. B.S.
Singh was posted as Director CCBF, Suratgarh on ad hoc basis
and was ordered to function as Head of Office during his tenure
vide order dated 21.02.1995. No authorization was given to H.S.
Rathore to issue letter of appointment. He was merely holding
the post of Agriculture Officer. Considering the unilateral action
of H.S. Rathore, major penalty memorandum was issued to him
by the department on 22.06.2001 in particular with reference to
the appointments made by him to the post of
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Veterinary Compounder, Junior Mechanic, Tractor Helper and
milker and also on ad hoc basis to the post of LDC and UDC.
5. The other two affected candidates had also challenged the
termination order passed against them by way of Original
Application before the Central Administrative Tribunal, Jodhpur
Bench, Jodhpur. The Tribunal heard all the three O.As together
as the issues raised therein were similar.
6. The Tribunal, after analysing the relevant contentions of
both sides, opined that there was no infirmity in the termination
order passed against the concerned applicant including the
respondent herein. The Tribunal noted thus:
“11. It is not in dispute that till his ad hoc appointment as
Director, Regional Station for Forage Production and
Demonstration, Suratgarh, Shri HS. Rathore, was only posted as
Agriculture Officer, CCBF, Suratgarh. This is apparent from the
order dated 22.12.99 (Arin.A/10 of OA 204/2000). It is also
admitted fact that by virtue of order dated 25.8.92 (Ann.A/6 to the
same OA), Shri Rathore was ordered to look after the current
charge of the post of Director, CCBF, Suratgarh. One Dr. B.S.
Singh, was earlier posted as officiating Director and declared Head
of office. After posting of Dr. Singh, no declaration was made in
favour of Shri Rathore for his continuation as Head of Office.
Applicants‟ contention is „that since Dr. Singh, never took charge of
the responsibilities of Director, CCBF, Suratgarh, Shri H.S.
Rathore, continued to function as Head of the Office. By order
dated 15.7.99 one Shri M.N. Haque, was posted as Director and
ordered to take over charge of the post of Director, CCBF,
Suratgarh, from Shri H.S. Rathore. This order was stayed by this
Tribunal vide order dated 10.8.99, passed in OA 204/99. As a
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consequence, Shri Rathore continued to look after the current
duties of the post of Director, CCBF, Suratgarh.
12. Now the question which arises for our consideration is
whether an officer looking after the current duties of a post,
could exercise the statutory power as vested in the regular
incumbent of that post. In Government of India, Ministry of
Home Affairs, OM No. F.7/14/61-Ests.(A) dated 24.1.63,
clarification was issued that;
‘an officer appointed to perform the current duties of an
appointment can exercise administrative or financial powers
vested in the full-fledged incumbent of the post but he cannot
exercise statutory powers whether those powers are derived
direct from an act of parliament or rules Regulations and ByLaw
made under various Articles of the constitutions (e.g.,
Fundamental Rules Classifications, Control and Appeal Rules
Civil Services Regulations Delegations of Financial Powers
Rules etc.)’ (emphasis supplied).
13. By order dated 15.7.99 Shri. M.N. Hague, was posted as
Director, CCBF, but only by virtue of the direction of this Tribunal
in OA. 204/99, Shri Rathore, was permitted to look after the
current charge. Obviously, this would not have empowered Shri
Rathore to exercise statutory powers of the post of Director.
For the purpose of statutory powers, he was only an
Agriculture Officer. Thus, the contention of the learned counsel
for the applicant that Shri Rathore had been declared as „Head of
Office‟ and so could have exercised powers of appointment by
virtue of Rule-2(j) of the CCS (CCA) Rules has no force. In view of
the specific clarification given under Rule-12 in Government of
India‟s Order No.2 that an officer holding current charge of duties
of a post cannot exercise statutory powers. The conclusion is
obvious that Shri H.S. Rathore, at the time of recruiting the
applicants, was only a Agriculture Officer looking after the
current charge of the post of Director, CCBF, Suratgarh, and
he had no authority to make any appointment to Group – C &
D. It is a clear case of Shri Rathore exceeding his authority.
Even if, he had processed the appointment, offer of
appointments, obviously could not have been made while and
unless, he had obtained approval from the Ministry of
Agriculture. In fact, he did make a reference to the Ministry
on 16.11.99 seeking approval or filling up these posts but for
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reasons best known to him, he did not wait for this approval
and went ahead and offered appointments to these applicants.
This raise a serious doubt about the motive behind the haste
on the part of Shri Rathore, in appointing these applicants.
The plea now taken on his behalf that such approval was not
required has no basis at all. This is more so, when the rules clearly
provide that an officer looking after the current charge should not
have exercised statutory powers of appointments.
14. These appointments are vitiated on other grounds also.
The fact that all the three applicants are related to Shri
Rathore, cannot be a mere co-incidence and reflects on the
intention behind making these appointments. The ways the
selection committee has been constituted by including even
Group-C members, is indicative of the irregular practice
knowingly adopted by Shri Rathore while making these
appointments.”
(emphasis supplied)
7. The Tribunal then adverted to the legal position that any
appointment made de hors the statutory rules has no validity
and that those who come by the back door have to return by the
same back door and cannot claim protection of principles of
natural justice. For that, the Tribunal relied on the exposition of
this Court in the case of Union of India & Ors. Vs. M.
Bhaskaran1, State of U.P. & Ors. Vs. U.P. State Law Officers
Association & Ors.2 and Kendriya Vidyalaya Sangathan &
1 (1995) Suppl. 4 SCC 100
2
(1994) 2 SCC 204
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Ors. Vs. Ajay Kumar Das & Ors.3 and in conclusion, observed
thus:
“17. In this case, Shri H.S. Rathore, not only acted totally
arbitrarily on every step of the process of recruitment but, acted
beyond his powers and jurisdiction while making the appointment.
For the view we have taken that these appointments were made by
an authority not competent to make such appointments, we do not
consider it necessary to go into the other aspects of the controversy
that one the appointees did not possess the requisite qualifications
or that the currency of the sanction of the posts had expired.
18. It is clear from the discussions in the preceding paragraphs
that these appointments have been made in a totally irregular
manner by an authority not competent to make such
appointments. The appointment letters have been rightly cancelled
and orders of cancellation do not call for any interference by this
Tribunal. The applicants have miserably failed to establish any
case in their favour. We dismiss these O.A. as totally devoid of
merits. No order as to costs.”
8. Feeling aggrieved, the respondent filed a writ petition in the
High Court of Judicature for Rajasthan at Jodhpur, being D.B.
Civil Writ Petition No.4235 of 2002. The Division Bench of the
High Court, by judgment and order dated April 23, 2010, upheld
the argument of the respondent that the Office Order dated
29.08.2000 merely records one fact that the appointment of the
respondent was made without approval of the competent
authority. In such a case, the services of respondent could be
terminated only after giving him opportunity of hearing. The
High Court observed thus:
3 (2002) 4 SCC 503
11
“Upon perusal of the above order, it is abundantly clear that the
only reason for termination of the services of the petitioner was
that appointment was made without approval of the competent
authority. No other ground with regard to competence of the
Director or with regard to allegation against the Director for
making illegal appointment is incorporated for establishing the
allegations. In this view of the matter, the reason for termination of
the services was not made known to the petitioner because the
department neither issued any notice nor provide any opportunity
of hearing to the petitioner before passing order dated 29.08.2004.
The only reason for terminating his services is that appointment
was made without approval of the competent authority; meaning
thereby, for contesting the matter before the Tribunal the grounds
other than the basic ground were submitted before the Tribunal
which were meant to be basis for terminating the services of the
petitioner; meaning thereby, the grounds agitated before the
Tribunal were altogether different than the reasons incorporated in
the order Annex. – 4. In this view of the matter, we are of the
opinion that order of termination suffers from arbitrariness and
illegality, so also, passed against the principles of natural justice.
We are unable to understand the reason incorporated in the
reply filed by the respondents before the Tribunal because the
reasons incorporated in the reply for terminating the service of the
petitioner are not mentioned in the termination order.”
9. The High Court then adverted to the decision of D.K. Yadav
Vs. J.M.A. Industries Ltd.4 and the decision of the Division
Bench of the same High Court in the case of Bhupal Singh Vs.
State of Rajasthan5. Thereafter, the High Court concluded as
follows:
“Upon assessment of the termination order, we are of the opinion
that the Tribunal has committed gross error while dismissing the
4 (1993) 3 SCC 259
5 (1988) 2 RLW 428
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original application filed by the petitioner. So also, the termination
order dated 29.8.2000 issued in violation of the principles of
natural justice by the Department for terminating the services of
the petitioner is patently illegal order and the same deserves to be
quashed.
Hence, while following the judgment of Hon‟ble Supreme Court in
D.K. Yadav‟s case (supra) and judgment of the Division Bench of
this Court in the case of Bhupa Singh Vs. State of Rajasthan
(supra), this writ petition is allowed. The impugned judgment dated
06.06.2002 passed by the Tribunal in Original Application
No.206/2000 is set aside. The order dated 29.08.2000 (Annex.-4 to
the original application), terminating the services of the petitioner,
is quashed and set aside. Further, it is made clear that as a
consequence of quashing termination order Annex. – 4, the
petitioner will be entitled to all consequential benefits except backwages
and petitioner shall be reinstated in service forthwith.
Respondents will, however, be at liberty to pass fresh order for
terminating the services of the petitioner, in accordance with law, if
valid and lawful grounds exist to show that petitioner has
committed any illegality while seeking appointment.”
The High Court thus opined that the termination order could
be passed only after giving opportunity to the respondent and
not otherwise.
10. Being aggrieved, the appellants filed the present Special
Leave Petition. This Court not only granted leave to appeal but
also stayed the operation of the impugned judgment during the
pendency of the appeal before this Court.
11. According to the appellant, the High Court committed
manifest error in overturning a well considered decision of the
Tribunal. For, the fact that no prior approval of the competent
authority as required under the statutory rules had been
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obtained before issuing the letter of appointment in favour of the
respondent, is indisputable. That reason has been explicated in
the subject office order dated 29.08.2000. The High Court,
without recording any opinion on the efficacy of that reason,
proceeded to set aside the subject office order on the ground that
no opportunity was given to the respondent before issuing the
same. Relying on the exposition in the cases of Kendriya
Vidyalaya Sangathan (supra) and State of Manipur and Ors.
Vs. Y. Token Singh and Ors.6, it is contended that giving prior
opportunity to the respondent before issuing the subject office
order was not obligatory; and no fruitful purpose would have
been served by giving such notice. The High Court, therefore, was
manifestly wrong. It is submitted that prior approval of the
competent authority is the quintessence for issuing a valid and
legal appointment order. Whereas, appointment order issued in
favour of the respondent being void ab initio, the competent
authority was duty bound to take corrective and remedial action
in the matter. That brooked no delay.
12. It is also submitted that the High Court mainly recorded
three aspects to interfere with the impugned office order. First,
6 (2007) 5 SCC 65
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that the office order does not state that the Director Incharge was
not competent to issue the appointment letter. Additionally, there
is no tittle of indication in the said order that the appointing
authority committed any illegality in making appointment.
Second, the reason for termination of services of respondent was
not made known to him by issuing a notice or by providing him
an opportunity of hearing. Third, the Tribunal took extraneous
facts into account to uphold the subject office order, by adverting
to grounds not referred to therein. It is submitted that none of
the above, dealt with the core reason noted in the subject office
order - that the same was necessitated as an illegal appointment
had been made by the then Director Incharge H.S. Rathore,
Agriculture Officer and without prior approval of the competent
authority. The appellant therefore, submits that the impugned
decision of the High Court is manifestly wrong and deserves to be
set aside and the order of the Tribunal ought to be restored,
upholding the office order dated 29.08.2000.
13. Per contra, the respondent has supported the reasons
recorded by the High Court and vehemently contends that no
interference is warranted. According to the respondent, the
appointment of the respondent has been made after adhering to
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necessary formalities pursuant to a public advertisement,
wherein the respondent emerged as the successful candidate.
Only thereafter he was appointed to the post of Veterinary
Compounder. It is submitted that the respondent acquired an
indefeasible right to remain on that post and in service.
According to the respondent, his services could not be terminated
without affording opportunity of hearing. Only upon affording
opportunity, the respondent could have been able to point out
that there was no illegality in his appointment. Inasmuch as lack
of approval of the competent authority before issuance of the
letter of appointment, does not render the appointment void but
at best, an irregularity. Since the appointment was not void ab
initio, no termination order could be issued without affording
opportunity to the respondent. The respondent has relied on the
decisions of this Court in the case of The Remington Rand of
India Ltd. Vs. The Workmen7, Karnal Improvement Trust,
Karnal Vs. Parkash Wanti (Smt.) (Dead) and Anr.8 and
Montreal Street Railway Company Vs. Normandin9. The
respondent contends that the mere fact that the High Court has
not dealt with the reason stated in the subject office order about
7 (1968) 1 SCR 164
8 (1995) 5 SCC 159
9 AIR (1917) Privy Council 142
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the lack of approval of competent authority, can be no basis to
whittle down the indefeasible right enured to him. Further,
deprivation of opportunity of hearing before passing the
termination order was fatal as the said order entailed civil
consequences to him. The respondent prays for dismissal of the
appeal.
14. We have heard the learned counsels for appellants Mr. A.K.
Panda, Senior Advocate, Mrs. C.K. Sucharita, Mr. Shailender
Saini, Mr. Raj Bahadur and Mr. D.S. Mahra, and Dr. Manish
Singhvi, Mr. Shailja Nanda Mishra, Mr. Satyendra Kumar, Mr.
Yuvraj Simant and Mr. Irshad Ahmad, learned counsels for
respondent.
15. Reverting to the subject office order, we are in agreement
with the stand taken by the appellant that the same is a
simpliciter termination and is no reflection on the conduct of the
respondent. It merely explicates that his appointment was illegal
having been made by the then Director Incharge H.S. Rathore,
Agriculture Officer and without prior approval of the competent
authority. No more and no less.
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16. We shall now consider the efficacy of the reason so recorded
in the office order. The recruitment procedure in relation to the
post of Veterinary Compounder is governed by the statutory rules
titled „Central Cattle Breeding Farms (Class III and Class IV
posts) Recruitment Rules, 1969, as amended from time to time
and including the executive instructions issued in that behalf. As
per the stated dispensation for such recruitment, the
appointment letter could be issued only by an authorised officer
and after grant of approval by the competent authority. Nowhere
in the Original Application filed by the respondent, it has been
asserted that such prior approval is not the quintessence for
issuing a letter of appointment.
17. 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 issue of the letter of
appointment to the respondent. Thus, it is indisputable that no
prior approval of the competent authority was given for the
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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.
18. There is yet another aspect which has been glossed over by
the High Court. The subject office order dated 29.08.2000 opens
with the statement that the same was issued in compliance with
the Ministry‟s decision vide letter No.8-6/1999-ADMN.III
dt.18.08.2000. By reference to the said communication-cumdecision
of the Ministry, it stood incorporated in the subject
office order. Besides, the subject office order explicitly states that
the appointment of the respondent was illegally made by the then
Director Incharge H.S. Rathore, Agriculture Officer. This reason
19
of illegal appointment takes within its fold the unilateral
constitution of the selection Board (not in accordance with
the prescribed constitution of the selection Board) and also H.S.
Rathore nominating himself as the Chairman of such Board,
although disqualified to be on the Board because the candidate
was related to him. As a result, the Ministry took holistic decision
on 18.08.2000 at the highest level after reckoning all aspects of
the matter including that it was not just a solitary appointment
of the respondent, but also other appointment letters issued by
H.S. Rathore under his signature. All such appointments have
been nullified by the Ministry in the same manner in addition to
initiating departmental action against H.S. Rathore. Tersely put,
all appointments made by H.S. Rathore came under the scanner
as being fraudulent and without authority. Such appointments
would obviously be a nullity in law.
19. The Tribunal had justly relied on the exposition in the cases
of M. Bhaskaran (supra) and in particular, Kendriya Vidyalaya
Sangathan (supra). In the latter case, in paragraph 5 of the
reported decision, while dealing with a similar situation, the
Court observed that if the appointment letters are nullity, having
been issued by an officer who did not wield authority to do so,
20
there was no question of observance of principles of natural
justice even though the affected party was not before the Court.
20. In the case of State of Manipur (supra), 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. It may be useful to advert to paragraph 22 of the reported
decision, which reads thus:
“22. The respondents, therefore, in our opinion, were not entitled
to hold the posts. In a case of this nature, where the facts are
admitted, the principles of natural justice were not required to
be complied with, particularly when the same would result in
futility. It is true that where appointments had been made by a
competent authority or at least some steps have been taken in that
behalf, the principles of natural justice are required to be complied
with, in view of the decision of this Court in Murugayya Udayar10.”
(emphasis supplied)
21. In paragraph 30 of the reported decision, the Court adverted
to the exposition in M.C. Mehta Vs. Union of India & Ors.11
which evolved the „useless formality‟ theory. It is apposite to
10 (1991) Supp. (1) SCC 331
11 (1999) 6 SCC 237
21
reproduce paragraphs 30 to 32 of the reported judgment, which
read thus:
“30. In M.C. Mehta Vs. Union of India this Court developed the
“useless formality” theory stating: (SCCPP.246-47, para 22)
“More recently Lord Bingham has deprecated the
„useless formality‟ theory in R.v. Chief Constable of the
Thames Valley Police Forces, ex p Cotton12 by giving
six reasons. (See also his article „Should Public Law
Remedies be Discretionary? 1991 PL, p.64.) A detailed
and emphatic criticism of the „useless formality theory‟
has been made much earlier in „Natural Justice,
Substance or Shadow‟ by Prof. D.H. Clark of Canada
(see 1975 PL, pp. 27-63) contending that Malloch and
Glynn were wrongly decided. Foulkes (Administrative
Law, 8th Edn., 1996, p.323), Craig (Administrative
Law, 3rd Edn., p. 596) and others say that the Court
cannot prejudge what is to be decided by the decisionmaking
authority. De Smith (5th Edn., 1994, paras
10.031 to 10.036) says courts have not yet committed
themselves to any one view though discretion is always
with the court. Wade (Administrative Law, 5th Edn.,
1994, pp. 526-30) says that while futile writs may not
be issued, a distinction has to be made according to
the nature of the decision. Thus, in relation to cases
other than those relating to admitted or indisputable
facts, there is a considerable divergence of opinion
whether the applicant can be compelled to prove that
the outcome will be in his favour or he has to prove a
case of substance or if he can prove a „real likelihood‟
of success or if he is entitled to relief even if there is
some remote chance of success. We may, however,
point out that even in cases where the facts are not all
admitted or beyond dispute, there is a considerable
unanimity that the courts can, in exercise of their
„discretion‟, refuse certiorari, prohibition, mandamus
or injunction even though natural justice is not
followed. We may also state that there is yet another
line of cases as in State Bank of Patiala Vs. S.K.
Sharma13, Rajendra Singh Vs. State of M.P.14 that
even in relation to statutory provisions requiring
notice, a distinction is to be made between cases
where the provision is intended for individual benefit
12 (1990) IRLR 344
13 (1996) 3 SCC 364
14 (1996) 5 SCC 460
22
and where a provision is intended to protect public
interest. In the former case, it can be waived while in
the case of the latter, it cannot be waived.”
(emphasis in original)
31. In Kendriya Vidyalaya Sangathan it was held: (SCC p. 505,
para5)
“It is clear that if after the termination of
services of the said Dr. K.C. Rakesh, the orders of
appointment are issued, such orders are not valid. If
such appointment orders are a nullity, the
question of observance of principles of natural
justice would not arise.”
32. In Bar Council of India Vs. High Court of Kerala15 it was
stated : (SCC p.323, para45)
“Principles of natural justice, however,
cannot be stretched too far. Their application may be
subject to the provisions of a statute or statutory rule.”
(emphasis supplied)
In the present case, the appointment letter was admittedly
issued without the approval of the competent authority.
22. In Dhirender Singh & Ors. Vs. State of Haryana &
Ors.16, termination of the appellant therein albeit without notice,
was not interfered with by the Court as admittedly the same was
not approved by the competent authority. The underlying
principle will apply proprio vigore to the present case, as the letter
of appointment has been issued by an officer who had no
authority to do so and also because it was issued without waiting
15 (2004) 6 SCC 311
16 (1997) 2 SCC 712
23
for the approval of the competent authority. Resultantly, there
was no necessity to afford opportunity to the respondent before
issuing the letter of cancellation of such appointment. The mere
fact that such letter of appointment had been issued in favour of
the respondent does not bestow any right in his favour much less
to insist for an opportunity of being heard.
23. Reverting to the impugned decision of the High Court, the
High Court has not analysed the efficacy of the crucial reason
recorded in the subject office order dated 29.08.2000 in its
correct perspective. Indeed, the High Court has noted that prior
approval of the competent authority was not mandatory. That
observation, in our opinion, is manifestly wrong. We affirm the
view expressed by the Tribunal that the appointment of
respondent was not in conformity with the governing Rules and
executive instructions in that regard.
24. Further, the High Court could not have interfered with the
subject office order solely on the ground that it was issued
without affording an opportunity to the respondent. The other
reason which had weighed with the High Court, in our opinion,
will be of no avail to the fact situation of the present case. To wit,
24
the fact that the subject office order does not attribute any
motives to the then Director Incharge, can be no basis to
invalidate the same. In our opinion, the office order records just
and tangible reason as to why the appointment of the respondent
is illegal. Unless the core reason mentioned in the subject office
order was found to be untenable, the High Court could not have
concluded that the subject office order was vitiated merely
because it was issued without notice or lack of opportunity to the
respondent. Similarly, the fact that the Tribunal has taken note
of other grounds urged by the parties (other than the reason
noted in the subject office order), per se, cannot be the basis to
invalidate the subject office order which is otherwise just and
proper. The High Court could have ignored those other
reasons/grounds taken into account by the Tribunal.
25. Reverting to the decisions relied upon by the respondent, we
fail to understand as to how the decision in the case of The
Remington Rand of India Ltd. (supra) will be of any avail to the
respondent. In that case, the Court was called upon to consider
the effect of not publishing the award passed by the Hon‟ble
Tribunal within the statutory period. In the context of that
question, the Court opined that the provision in Section 17(1) of
25
the Industrial Disputes Act was merely directory and not
mandatory and on that basis concluded that publication of award
beyond 30 days would not make it invalid. In the present case,
the letter of appointment could be issued by the designated
director and only after grant of prior approval from the competent
authority (the superior authority in the hierarchy of
administrative set up). Without such approval, the then Director
Incharge in no case could have rushed through the process of
issuing the letter of appointment, an action which was without
authority of law and a nullity.
26. In the case of Karnal Improvement Trust, Karnal
(supra), the Court considered the distinction between ministerial
acts and statutory or quasi judicial functions under the statute
and, in that context, observed that something should be done or
in a particular manner and expressly declaring what shall be the
consequence of non compliance, the effect thereof would be to
treat the infraction as a mere directory requirement and not
invalidate the action, so as to disregard the same. The principle
expounded in this decision will be of no avail to the respondent.
In light of factual matrix of this case, the letter of appointment in
favour of the respondent was issued illegally by the Director
26
Incharge H.S. Rathore, Agriculture Officer and without prior
approval of the competent authority. It was a nullity.
27. Even the case of Montreal Street Railway Company
(supra) cannot come to the rescue of the respondent. In the
present case, the requirement to obtain prior approval of the
competent authority has been made an essential requirement
and only then would the appointing authority be competent to
issue letter of appointment. For, after the proposal is submitted
for approval to the competent authority through proper channel
by the official duly authorised to do so, the competent authority
would reckon all aspects of the matter including whether the
selection process has been properly followed in all respects. That
would include the question such as whether the then Director
Incharge could have constituted the Board of seven members,
contrary to the established norms and moreso to act as
Chairman of such a Board after full knowledge that the candidate
appearing for the interview was his relative.
28. We have no hesitation in concluding that in the fact
situation of the present case, giving opportunity of hearing to the
respondent before issuance of the subject office order was not an
27
essential requirement and it would be an exercise in futility. For
the view that we have taken, the exposition in D.K. Yadav
(supra), which commended to the High Court, in our opinion, has
no application to the fact situation of the present case concerning
an appointment which is void ab initio and nullity.
29. Accordingly, we set aside the impugned judgment and
order of the High Court and restore the judgment of the
Central Administrative Tribunal dated 06.06.2002, dismissing
the Original Application filed by the respondent.
30. The appeal succeeds in the above terms with no order as
to costs.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
March 13, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1636 OF 2012
UNION OF INDIA AND ANR. …..APPELLANT(S)
:Versus:
RAGHUWAR PAL SINGH …..RESPONDENT(S)
J U D G M E N T
A.M. Khanwilkar, J.
1. The central questions posed in this appeal are: (i) whether
the appointment of the respondent to the post of Veterinary
Compounder, made by the Director Incharge at the relevant point
of time without approval of the Competent Authority, was a
nullity or a mere irregularity, which could be glossed over by the
department to avert disruption of his services and; (ii) in any
case, whether his services could be disrupted without giving him
an opportunity of hearing.
2. Briefly stated, the respondent was appointed to the post of
Veterinary Compounder in the Department of Animal Husbandry
2
and Dairying by one H.S. Rathore, the then Agriculture Officer,
Central Cattle Breeding Farms (CCBF), Suratgarh, who was
purportedly authorised only to look after the current duties of the
post of Director. The appointment was made in November 1999
on a provisional and temporary basis, pursuant to the
advertisement published in the newspaper on 15.10.1999.
However, by an office order dated 29th August, 2000 issued under
the signature of Dr. M.N. Haque, Director, the services of
respondent came to be terminated. The said order reads thus:
“Government of India
Ministry of Agriculture
Department of All & Dairying
……….Cattle Breeding Farm
SURATGARH – 335 804 (Raj.)
Dated the 29thAugust, 2000.
OFFICE ORDER
In compliance to Ministry‟s decision vide their letter No.8-
6/99-Admn.III dated 18thAugust, 2000, illegal appointment, of
Shri Raghuwar Pal Singh S/o Shri Himat Singh Shekhawat to the
post of Veterinary Compounder, made by the then Director
Incharge Shri H.S. Rathore, agriculture Officer, without
approval of the Competent Authority, vide this office order No.
14-62/99-CPS/1562 dated 24/30 November, 1999, is
CANCELLED with immediate effect. Accordingly, his service stands
terminated as per terms and conditions laid down in point v) & vi)
of the offer of appointment letter no.5-17/96-99/CPS/1308 dated
16/22 November, 1999.
(Dr. M.N. Haque)
DIRECTOR.”
(emphasis supplied)
3
3. The respondent assailed the said order by filing Original
Application No.206 of 2000 before the Central Administrative
Tribunal, Jodhpur Bench at Jodhpur, inter alia, on the ground
that the appointment was made by the Board of Officers after
they had duly considered the matter and who were competent to
issue offer of appointment to the respondent. Further, if there
was any irregularity in the appointment process, that could have
been enquired into by the department, but without taking
recourse to any inquiry, the impugned termination order had
been issued. Such action was violative of Article 311 (2) of the
Constitution of India. According to the respondent, his
appointment was made after following all the formalities by the
department in a fair and transparent manner. He asserted that
the department was therefore, estopped from terminating his
services. Further, the impugned order is not a termination
simpliciter but would cause prejudice to the respondent. It is a
stigmatic order indicating that the appointment of the respondent
was illegal, for which reason also, principles of natural justice
ought to have been adhered to by the department.
4
4. The appellants resisted the said Original Application, by
filing a detailed affidavit. According to the appellants, the
respondent had not approached the Court with clean hands. In
that, he has mentioned the numbers of the relevant documents,
which pertain to some other case and not his order of
appointment or termination. On merits, it was asserted by the
appellants that the appointment of the respondent to the post of
Veterinary Compounder was not as per the law. It was made by
the then Director Incharge H.S. Rathore, Agriculture Officer and
without approval of the competent authority. On the date of
issuing the appointment letter, Shri H.S. Rathore had no
authority to do so. It was asserted by the appellants that
pursuant to advertisement dated 15.10.1999, appointment
could be made only in conformity with the relevant Recruitment
Rules, as amended from time to time, titled „Central Cattle
Breeding Farm (Class III and IV Post) Recruitment Rules, 1969‟.
In terms of the said Rules, an interview was required to be
conducted by a Board comprising of three officers viz. Director of
the Farm, Senior-most Technical Officer and one Government
Officer of Central/State Government. However, the selection
process and interview in the present case were conducted by the
5
Board unilaterally constituted by the said H.S. Rathore,
consisting of seven members including himself, being Director
Incharge. Further, he acted as the Chairman of the said Board.
The Board consisted of the following members:
“1) Shri H.S. Rathore, 1/C Director Chairman
2) Shri S.C. Aggarwal, Executive Member Engineer, Central
State Farm (SFCI Ltd.) (Not a Central Govt. office)
3) Shri CS. Manohar, Asso. Professor Member Veterinary
College, Bikaner (whereas a Veterinary Officer is already
there in the office itself)
4) Shri R.L. Aswal, Asstt. Stn. Engineer Member All India
Radio, Suratgarh
5) Dr. M.S. Rathore, Project Officer Member URMUL Dairy,
Chhattargarh (Which is not a Central/State office)
6) Shri Baldev Singh, Agriculture Asstt. Member CCBF,
Suratgarh (A Group „C‟ employee)
7) Shri A. Narsingh, Technical Asst. member CCBF (A Group
„C‟ employee)”
In other words, the said Board was not validly constituted.
Furthermore, the respondent was the son of the younger brotherin-law
of H.S. Rathore, the Director Incharge and Chairman of
the Board. The Chairman of the Board had direct relation with
and interest in the appointment of the respondent. It is then
stated that as per the prescribed procedure, appointment is
required to be made after obtaining prior approval from the
competent authority i.e. Ministry of Agriculture, Department of
Animal Husbandry and Dairying, New Delhi. That procedure was,
admittedly, not adhered to before issuing the letter of
6
appointment to the respondent. For all these reasons, the
appointment of the respondent as made by the then Director
Incharge H.S. Rathore, Agriculture Officer, was without any
authority of law. It was a fraudulent appointment. When the
same was noticed by the department, soon thereafter, the subject
office order dated 29.08.2000 came to be issued. It was stated
that the appointment of two other candidates to the post of
Junior Mechanic and Tractor Helper made by H.S. Rathore as
Director Incharge also came to be cancelled by the department by
issuing similar termination order. In addition, a departmental
action has been initiated against H.S. Rathore for committing
serious misconduct and abusing his official position during the
relevant period. The appellants pointed out that one Dr. B.S.
Singh was posted as Director CCBF, Suratgarh on ad hoc basis
and was ordered to function as Head of Office during his tenure
vide order dated 21.02.1995. No authorization was given to H.S.
Rathore to issue letter of appointment. He was merely holding
the post of Agriculture Officer. Considering the unilateral action
of H.S. Rathore, major penalty memorandum was issued to him
by the department on 22.06.2001 in particular with reference to
the appointments made by him to the post of
7
Veterinary Compounder, Junior Mechanic, Tractor Helper and
milker and also on ad hoc basis to the post of LDC and UDC.
5. The other two affected candidates had also challenged the
termination order passed against them by way of Original
Application before the Central Administrative Tribunal, Jodhpur
Bench, Jodhpur. The Tribunal heard all the three O.As together
as the issues raised therein were similar.
6. The Tribunal, after analysing the relevant contentions of
both sides, opined that there was no infirmity in the termination
order passed against the concerned applicant including the
respondent herein. The Tribunal noted thus:
“11. It is not in dispute that till his ad hoc appointment as
Director, Regional Station for Forage Production and
Demonstration, Suratgarh, Shri HS. Rathore, was only posted as
Agriculture Officer, CCBF, Suratgarh. This is apparent from the
order dated 22.12.99 (Arin.A/10 of OA 204/2000). It is also
admitted fact that by virtue of order dated 25.8.92 (Ann.A/6 to the
same OA), Shri Rathore was ordered to look after the current
charge of the post of Director, CCBF, Suratgarh. One Dr. B.S.
Singh, was earlier posted as officiating Director and declared Head
of office. After posting of Dr. Singh, no declaration was made in
favour of Shri Rathore for his continuation as Head of Office.
Applicants‟ contention is „that since Dr. Singh, never took charge of
the responsibilities of Director, CCBF, Suratgarh, Shri H.S.
Rathore, continued to function as Head of the Office. By order
dated 15.7.99 one Shri M.N. Haque, was posted as Director and
ordered to take over charge of the post of Director, CCBF,
Suratgarh, from Shri H.S. Rathore. This order was stayed by this
Tribunal vide order dated 10.8.99, passed in OA 204/99. As a
8
consequence, Shri Rathore continued to look after the current
duties of the post of Director, CCBF, Suratgarh.
12. Now the question which arises for our consideration is
whether an officer looking after the current duties of a post,
could exercise the statutory power as vested in the regular
incumbent of that post. In Government of India, Ministry of
Home Affairs, OM No. F.7/14/61-Ests.(A) dated 24.1.63,
clarification was issued that;
‘an officer appointed to perform the current duties of an
appointment can exercise administrative or financial powers
vested in the full-fledged incumbent of the post but he cannot
exercise statutory powers whether those powers are derived
direct from an act of parliament or rules Regulations and ByLaw
made under various Articles of the constitutions (e.g.,
Fundamental Rules Classifications, Control and Appeal Rules
Civil Services Regulations Delegations of Financial Powers
Rules etc.)’ (emphasis supplied).
13. By order dated 15.7.99 Shri. M.N. Hague, was posted as
Director, CCBF, but only by virtue of the direction of this Tribunal
in OA. 204/99, Shri Rathore, was permitted to look after the
current charge. Obviously, this would not have empowered Shri
Rathore to exercise statutory powers of the post of Director.
For the purpose of statutory powers, he was only an
Agriculture Officer. Thus, the contention of the learned counsel
for the applicant that Shri Rathore had been declared as „Head of
Office‟ and so could have exercised powers of appointment by
virtue of Rule-2(j) of the CCS (CCA) Rules has no force. In view of
the specific clarification given under Rule-12 in Government of
India‟s Order No.2 that an officer holding current charge of duties
of a post cannot exercise statutory powers. The conclusion is
obvious that Shri H.S. Rathore, at the time of recruiting the
applicants, was only a Agriculture Officer looking after the
current charge of the post of Director, CCBF, Suratgarh, and
he had no authority to make any appointment to Group – C &
D. It is a clear case of Shri Rathore exceeding his authority.
Even if, he had processed the appointment, offer of
appointments, obviously could not have been made while and
unless, he had obtained approval from the Ministry of
Agriculture. In fact, he did make a reference to the Ministry
on 16.11.99 seeking approval or filling up these posts but for
9
reasons best known to him, he did not wait for this approval
and went ahead and offered appointments to these applicants.
This raise a serious doubt about the motive behind the haste
on the part of Shri Rathore, in appointing these applicants.
The plea now taken on his behalf that such approval was not
required has no basis at all. This is more so, when the rules clearly
provide that an officer looking after the current charge should not
have exercised statutory powers of appointments.
14. These appointments are vitiated on other grounds also.
The fact that all the three applicants are related to Shri
Rathore, cannot be a mere co-incidence and reflects on the
intention behind making these appointments. The ways the
selection committee has been constituted by including even
Group-C members, is indicative of the irregular practice
knowingly adopted by Shri Rathore while making these
appointments.”
(emphasis supplied)
7. The Tribunal then adverted to the legal position that any
appointment made de hors the statutory rules has no validity
and that those who come by the back door have to return by the
same back door and cannot claim protection of principles of
natural justice. For that, the Tribunal relied on the exposition of
this Court in the case of Union of India & Ors. Vs. M.
Bhaskaran1, State of U.P. & Ors. Vs. U.P. State Law Officers
Association & Ors.2 and Kendriya Vidyalaya Sangathan &
1 (1995) Suppl. 4 SCC 100
2
(1994) 2 SCC 204
10
Ors. Vs. Ajay Kumar Das & Ors.3 and in conclusion, observed
thus:
“17. In this case, Shri H.S. Rathore, not only acted totally
arbitrarily on every step of the process of recruitment but, acted
beyond his powers and jurisdiction while making the appointment.
For the view we have taken that these appointments were made by
an authority not competent to make such appointments, we do not
consider it necessary to go into the other aspects of the controversy
that one the appointees did not possess the requisite qualifications
or that the currency of the sanction of the posts had expired.
18. It is clear from the discussions in the preceding paragraphs
that these appointments have been made in a totally irregular
manner by an authority not competent to make such
appointments. The appointment letters have been rightly cancelled
and orders of cancellation do not call for any interference by this
Tribunal. The applicants have miserably failed to establish any
case in their favour. We dismiss these O.A. as totally devoid of
merits. No order as to costs.”
8. Feeling aggrieved, the respondent filed a writ petition in the
High Court of Judicature for Rajasthan at Jodhpur, being D.B.
Civil Writ Petition No.4235 of 2002. The Division Bench of the
High Court, by judgment and order dated April 23, 2010, upheld
the argument of the respondent that the Office Order dated
29.08.2000 merely records one fact that the appointment of the
respondent was made without approval of the competent
authority. In such a case, the services of respondent could be
terminated only after giving him opportunity of hearing. The
High Court observed thus:
3 (2002) 4 SCC 503
11
“Upon perusal of the above order, it is abundantly clear that the
only reason for termination of the services of the petitioner was
that appointment was made without approval of the competent
authority. No other ground with regard to competence of the
Director or with regard to allegation against the Director for
making illegal appointment is incorporated for establishing the
allegations. In this view of the matter, the reason for termination of
the services was not made known to the petitioner because the
department neither issued any notice nor provide any opportunity
of hearing to the petitioner before passing order dated 29.08.2004.
The only reason for terminating his services is that appointment
was made without approval of the competent authority; meaning
thereby, for contesting the matter before the Tribunal the grounds
other than the basic ground were submitted before the Tribunal
which were meant to be basis for terminating the services of the
petitioner; meaning thereby, the grounds agitated before the
Tribunal were altogether different than the reasons incorporated in
the order Annex. – 4. In this view of the matter, we are of the
opinion that order of termination suffers from arbitrariness and
illegality, so also, passed against the principles of natural justice.
We are unable to understand the reason incorporated in the
reply filed by the respondents before the Tribunal because the
reasons incorporated in the reply for terminating the service of the
petitioner are not mentioned in the termination order.”
9. The High Court then adverted to the decision of D.K. Yadav
Vs. J.M.A. Industries Ltd.4 and the decision of the Division
Bench of the same High Court in the case of Bhupal Singh Vs.
State of Rajasthan5. Thereafter, the High Court concluded as
follows:
“Upon assessment of the termination order, we are of the opinion
that the Tribunal has committed gross error while dismissing the
4 (1993) 3 SCC 259
5 (1988) 2 RLW 428
12
original application filed by the petitioner. So also, the termination
order dated 29.8.2000 issued in violation of the principles of
natural justice by the Department for terminating the services of
the petitioner is patently illegal order and the same deserves to be
quashed.
Hence, while following the judgment of Hon‟ble Supreme Court in
D.K. Yadav‟s case (supra) and judgment of the Division Bench of
this Court in the case of Bhupa Singh Vs. State of Rajasthan
(supra), this writ petition is allowed. The impugned judgment dated
06.06.2002 passed by the Tribunal in Original Application
No.206/2000 is set aside. The order dated 29.08.2000 (Annex.-4 to
the original application), terminating the services of the petitioner,
is quashed and set aside. Further, it is made clear that as a
consequence of quashing termination order Annex. – 4, the
petitioner will be entitled to all consequential benefits except backwages
and petitioner shall be reinstated in service forthwith.
Respondents will, however, be at liberty to pass fresh order for
terminating the services of the petitioner, in accordance with law, if
valid and lawful grounds exist to show that petitioner has
committed any illegality while seeking appointment.”
The High Court thus opined that the termination order could
be passed only after giving opportunity to the respondent and
not otherwise.
10. Being aggrieved, the appellants filed the present Special
Leave Petition. This Court not only granted leave to appeal but
also stayed the operation of the impugned judgment during the
pendency of the appeal before this Court.
11. According to the appellant, the High Court committed
manifest error in overturning a well considered decision of the
Tribunal. For, the fact that no prior approval of the competent
authority as required under the statutory rules had been
13
obtained before issuing the letter of appointment in favour of the
respondent, is indisputable. That reason has been explicated in
the subject office order dated 29.08.2000. The High Court,
without recording any opinion on the efficacy of that reason,
proceeded to set aside the subject office order on the ground that
no opportunity was given to the respondent before issuing the
same. Relying on the exposition in the cases of Kendriya
Vidyalaya Sangathan (supra) and State of Manipur and Ors.
Vs. Y. Token Singh and Ors.6, it is contended that giving prior
opportunity to the respondent before issuing the subject office
order was not obligatory; and no fruitful purpose would have
been served by giving such notice. The High Court, therefore, was
manifestly wrong. It is submitted that prior approval of the
competent authority is the quintessence for issuing a valid and
legal appointment order. Whereas, appointment order issued in
favour of the respondent being void ab initio, the competent
authority was duty bound to take corrective and remedial action
in the matter. That brooked no delay.
12. It is also submitted that the High Court mainly recorded
three aspects to interfere with the impugned office order. First,
6 (2007) 5 SCC 65
14
that the office order does not state that the Director Incharge was
not competent to issue the appointment letter. Additionally, there
is no tittle of indication in the said order that the appointing
authority committed any illegality in making appointment.
Second, the reason for termination of services of respondent was
not made known to him by issuing a notice or by providing him
an opportunity of hearing. Third, the Tribunal took extraneous
facts into account to uphold the subject office order, by adverting
to grounds not referred to therein. It is submitted that none of
the above, dealt with the core reason noted in the subject office
order - that the same was necessitated as an illegal appointment
had been made by the then Director Incharge H.S. Rathore,
Agriculture Officer and without prior approval of the competent
authority. The appellant therefore, submits that the impugned
decision of the High Court is manifestly wrong and deserves to be
set aside and the order of the Tribunal ought to be restored,
upholding the office order dated 29.08.2000.
13. Per contra, the respondent has supported the reasons
recorded by the High Court and vehemently contends that no
interference is warranted. According to the respondent, the
appointment of the respondent has been made after adhering to
15
necessary formalities pursuant to a public advertisement,
wherein the respondent emerged as the successful candidate.
Only thereafter he was appointed to the post of Veterinary
Compounder. It is submitted that the respondent acquired an
indefeasible right to remain on that post and in service.
According to the respondent, his services could not be terminated
without affording opportunity of hearing. Only upon affording
opportunity, the respondent could have been able to point out
that there was no illegality in his appointment. Inasmuch as lack
of approval of the competent authority before issuance of the
letter of appointment, does not render the appointment void but
at best, an irregularity. Since the appointment was not void ab
initio, no termination order could be issued without affording
opportunity to the respondent. The respondent has relied on the
decisions of this Court in the case of The Remington Rand of
India Ltd. Vs. The Workmen7, Karnal Improvement Trust,
Karnal Vs. Parkash Wanti (Smt.) (Dead) and Anr.8 and
Montreal Street Railway Company Vs. Normandin9. The
respondent contends that the mere fact that the High Court has
not dealt with the reason stated in the subject office order about
7 (1968) 1 SCR 164
8 (1995) 5 SCC 159
9 AIR (1917) Privy Council 142
16
the lack of approval of competent authority, can be no basis to
whittle down the indefeasible right enured to him. Further,
deprivation of opportunity of hearing before passing the
termination order was fatal as the said order entailed civil
consequences to him. The respondent prays for dismissal of the
appeal.
14. We have heard the learned counsels for appellants Mr. A.K.
Panda, Senior Advocate, Mrs. C.K. Sucharita, Mr. Shailender
Saini, Mr. Raj Bahadur and Mr. D.S. Mahra, and Dr. Manish
Singhvi, Mr. Shailja Nanda Mishra, Mr. Satyendra Kumar, Mr.
Yuvraj Simant and Mr. Irshad Ahmad, learned counsels for
respondent.
15. Reverting to the subject office order, we are in agreement
with the stand taken by the appellant that the same is a
simpliciter termination and is no reflection on the conduct of the
respondent. It merely explicates that his appointment was illegal
having been made by the then Director Incharge H.S. Rathore,
Agriculture Officer and without prior approval of the competent
authority. No more and no less.
17
16. We shall now consider the efficacy of the reason so recorded
in the office order. The recruitment procedure in relation to the
post of Veterinary Compounder is governed by the statutory rules
titled „Central Cattle Breeding Farms (Class III and Class IV
posts) Recruitment Rules, 1969, as amended from time to time
and including the executive instructions issued in that behalf. As
per the stated dispensation for such recruitment, the
appointment letter could be issued only by an authorised officer
and after grant of approval by the competent authority. Nowhere
in the Original Application filed by the respondent, it has been
asserted that such prior approval is not the quintessence for
issuing a letter of appointment.
17. 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 issue of the letter of
appointment to the respondent. Thus, it is indisputable that no
prior approval of the competent authority was given for the
18
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.
18. There is yet another aspect which has been glossed over by
the High Court. The subject office order dated 29.08.2000 opens
with the statement that the same was issued in compliance with
the Ministry‟s decision vide letter No.8-6/1999-ADMN.III
dt.18.08.2000. By reference to the said communication-cumdecision
of the Ministry, it stood incorporated in the subject
office order. Besides, the subject office order explicitly states that
the appointment of the respondent was illegally made by the then
Director Incharge H.S. Rathore, Agriculture Officer. This reason
19
of illegal appointment takes within its fold the unilateral
constitution of the selection Board (not in accordance with
the prescribed constitution of the selection Board) and also H.S.
Rathore nominating himself as the Chairman of such Board,
although disqualified to be on the Board because the candidate
was related to him. As a result, the Ministry took holistic decision
on 18.08.2000 at the highest level after reckoning all aspects of
the matter including that it was not just a solitary appointment
of the respondent, but also other appointment letters issued by
H.S. Rathore under his signature. All such appointments have
been nullified by the Ministry in the same manner in addition to
initiating departmental action against H.S. Rathore. Tersely put,
all appointments made by H.S. Rathore came under the scanner
as being fraudulent and without authority. Such appointments
would obviously be a nullity in law.
19. The Tribunal had justly relied on the exposition in the cases
of M. Bhaskaran (supra) and in particular, Kendriya Vidyalaya
Sangathan (supra). In the latter case, in paragraph 5 of the
reported decision, while dealing with a similar situation, the
Court observed that if the appointment letters are nullity, having
been issued by an officer who did not wield authority to do so,
20
there was no question of observance of principles of natural
justice even though the affected party was not before the Court.
20. In the case of State of Manipur (supra), 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. It may be useful to advert to paragraph 22 of the reported
decision, which reads thus:
“22. The respondents, therefore, in our opinion, were not entitled
to hold the posts. In a case of this nature, where the facts are
admitted, the principles of natural justice were not required to
be complied with, particularly when the same would result in
futility. It is true that where appointments had been made by a
competent authority or at least some steps have been taken in that
behalf, the principles of natural justice are required to be complied
with, in view of the decision of this Court in Murugayya Udayar10.”
(emphasis supplied)
21. In paragraph 30 of the reported decision, the Court adverted
to the exposition in M.C. Mehta Vs. Union of India & Ors.11
which evolved the „useless formality‟ theory. It is apposite to
10 (1991) Supp. (1) SCC 331
11 (1999) 6 SCC 237
21
reproduce paragraphs 30 to 32 of the reported judgment, which
read thus:
“30. In M.C. Mehta Vs. Union of India this Court developed the
“useless formality” theory stating: (SCCPP.246-47, para 22)
“More recently Lord Bingham has deprecated the
„useless formality‟ theory in R.v. Chief Constable of the
Thames Valley Police Forces, ex p Cotton12 by giving
six reasons. (See also his article „Should Public Law
Remedies be Discretionary? 1991 PL, p.64.) A detailed
and emphatic criticism of the „useless formality theory‟
has been made much earlier in „Natural Justice,
Substance or Shadow‟ by Prof. D.H. Clark of Canada
(see 1975 PL, pp. 27-63) contending that Malloch and
Glynn were wrongly decided. Foulkes (Administrative
Law, 8th Edn., 1996, p.323), Craig (Administrative
Law, 3rd Edn., p. 596) and others say that the Court
cannot prejudge what is to be decided by the decisionmaking
authority. De Smith (5th Edn., 1994, paras
10.031 to 10.036) says courts have not yet committed
themselves to any one view though discretion is always
with the court. Wade (Administrative Law, 5th Edn.,
1994, pp. 526-30) says that while futile writs may not
be issued, a distinction has to be made according to
the nature of the decision. Thus, in relation to cases
other than those relating to admitted or indisputable
facts, there is a considerable divergence of opinion
whether the applicant can be compelled to prove that
the outcome will be in his favour or he has to prove a
case of substance or if he can prove a „real likelihood‟
of success or if he is entitled to relief even if there is
some remote chance of success. We may, however,
point out that even in cases where the facts are not all
admitted or beyond dispute, there is a considerable
unanimity that the courts can, in exercise of their
„discretion‟, refuse certiorari, prohibition, mandamus
or injunction even though natural justice is not
followed. We may also state that there is yet another
line of cases as in State Bank of Patiala Vs. S.K.
Sharma13, Rajendra Singh Vs. State of M.P.14 that
even in relation to statutory provisions requiring
notice, a distinction is to be made between cases
where the provision is intended for individual benefit
12 (1990) IRLR 344
13 (1996) 3 SCC 364
14 (1996) 5 SCC 460
22
and where a provision is intended to protect public
interest. In the former case, it can be waived while in
the case of the latter, it cannot be waived.”
(emphasis in original)
31. In Kendriya Vidyalaya Sangathan it was held: (SCC p. 505,
para5)
“It is clear that if after the termination of
services of the said Dr. K.C. Rakesh, the orders of
appointment are issued, such orders are not valid. If
such appointment orders are a nullity, the
question of observance of principles of natural
justice would not arise.”
32. In Bar Council of India Vs. High Court of Kerala15 it was
stated : (SCC p.323, para45)
“Principles of natural justice, however,
cannot be stretched too far. Their application may be
subject to the provisions of a statute or statutory rule.”
(emphasis supplied)
In the present case, the appointment letter was admittedly
issued without the approval of the competent authority.
22. In Dhirender Singh & Ors. Vs. State of Haryana &
Ors.16, termination of the appellant therein albeit without notice,
was not interfered with by the Court as admittedly the same was
not approved by the competent authority. The underlying
principle will apply proprio vigore to the present case, as the letter
of appointment has been issued by an officer who had no
authority to do so and also because it was issued without waiting
15 (2004) 6 SCC 311
16 (1997) 2 SCC 712
23
for the approval of the competent authority. Resultantly, there
was no necessity to afford opportunity to the respondent before
issuing the letter of cancellation of such appointment. The mere
fact that such letter of appointment had been issued in favour of
the respondent does not bestow any right in his favour much less
to insist for an opportunity of being heard.
23. Reverting to the impugned decision of the High Court, the
High Court has not analysed the efficacy of the crucial reason
recorded in the subject office order dated 29.08.2000 in its
correct perspective. Indeed, the High Court has noted that prior
approval of the competent authority was not mandatory. That
observation, in our opinion, is manifestly wrong. We affirm the
view expressed by the Tribunal that the appointment of
respondent was not in conformity with the governing Rules and
executive instructions in that regard.
24. Further, the High Court could not have interfered with the
subject office order solely on the ground that it was issued
without affording an opportunity to the respondent. The other
reason which had weighed with the High Court, in our opinion,
will be of no avail to the fact situation of the present case. To wit,
24
the fact that the subject office order does not attribute any
motives to the then Director Incharge, can be no basis to
invalidate the same. In our opinion, the office order records just
and tangible reason as to why the appointment of the respondent
is illegal. Unless the core reason mentioned in the subject office
order was found to be untenable, the High Court could not have
concluded that the subject office order was vitiated merely
because it was issued without notice or lack of opportunity to the
respondent. Similarly, the fact that the Tribunal has taken note
of other grounds urged by the parties (other than the reason
noted in the subject office order), per se, cannot be the basis to
invalidate the subject office order which is otherwise just and
proper. The High Court could have ignored those other
reasons/grounds taken into account by the Tribunal.
25. Reverting to the decisions relied upon by the respondent, we
fail to understand as to how the decision in the case of The
Remington Rand of India Ltd. (supra) will be of any avail to the
respondent. In that case, the Court was called upon to consider
the effect of not publishing the award passed by the Hon‟ble
Tribunal within the statutory period. In the context of that
question, the Court opined that the provision in Section 17(1) of
25
the Industrial Disputes Act was merely directory and not
mandatory and on that basis concluded that publication of award
beyond 30 days would not make it invalid. In the present case,
the letter of appointment could be issued by the designated
director and only after grant of prior approval from the competent
authority (the superior authority in the hierarchy of
administrative set up). Without such approval, the then Director
Incharge in no case could have rushed through the process of
issuing the letter of appointment, an action which was without
authority of law and a nullity.
26. In the case of Karnal Improvement Trust, Karnal
(supra), the Court considered the distinction between ministerial
acts and statutory or quasi judicial functions under the statute
and, in that context, observed that something should be done or
in a particular manner and expressly declaring what shall be the
consequence of non compliance, the effect thereof would be to
treat the infraction as a mere directory requirement and not
invalidate the action, so as to disregard the same. The principle
expounded in this decision will be of no avail to the respondent.
In light of factual matrix of this case, the letter of appointment in
favour of the respondent was issued illegally by the Director
26
Incharge H.S. Rathore, Agriculture Officer and without prior
approval of the competent authority. It was a nullity.
27. Even the case of Montreal Street Railway Company
(supra) cannot come to the rescue of the respondent. In the
present case, the requirement to obtain prior approval of the
competent authority has been made an essential requirement
and only then would the appointing authority be competent to
issue letter of appointment. For, after the proposal is submitted
for approval to the competent authority through proper channel
by the official duly authorised to do so, the competent authority
would reckon all aspects of the matter including whether the
selection process has been properly followed in all respects. That
would include the question such as whether the then Director
Incharge could have constituted the Board of seven members,
contrary to the established norms and moreso to act as
Chairman of such a Board after full knowledge that the candidate
appearing for the interview was his relative.
28. We have no hesitation in concluding that in the fact
situation of the present case, giving opportunity of hearing to the
respondent before issuance of the subject office order was not an
27
essential requirement and it would be an exercise in futility. For
the view that we have taken, the exposition in D.K. Yadav
(supra), which commended to the High Court, in our opinion, has
no application to the fact situation of the present case concerning
an appointment which is void ab initio and nullity.
29. Accordingly, we set aside the impugned judgment and
order of the High Court and restore the judgment of the
Central Administrative Tribunal dated 06.06.2002, dismissing
the Original Application filed by the respondent.
30. The appeal succeeds in the above terms with no order as
to costs.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
March 13, 2018.
