UNION OF INDIA AND ANR. versus RAGHUWAR PAL SINGH

[2018] 4 S.C.R.

UNION OF INDIA AND ANR.

RAGHUWAR PAL SINGH

(Civil Appeal No. 1636 of 2012)

MARCH 13, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D.Y. CHANDRACHUD, JJ.]

Service Law:

CAppointment – Without approval of competent authority –Termination of service – Without affording opportunity of hearing –Propriety of – Held: Prior approval of competent authority forappointment was mandatory as per service rules and executiveinstructions – Therefore, appointment without prior approval ofcompetent authority, suffers from the vice of lack of authority andDnullify in law – The appointment being nullity there was no questionof observance of principles of natural justice before termination ofsuch appointment – Central Cattle Breeding Forum (Class III andIV Post) Recruitment Rules, 1969- Principle of Natural Justice.

Allowing the appeal, the Court

HELD: 1. The recruitment procedure in relation to the postof Veterinary Compounder is governed by the statutory rulestitled ‘Central Cattle Breeding Farms (Class III and Class IVposts) Recruitment Rules, 1969, as amended from time to timeand including the executive instructions issued in that behalf.FAs per the stated dispensation for such recruitment, theappointment letter could be issued only by an authorised officerand after grant of approval by the competent authority. Even if itis assumed that the then Director Incharge had the authority toissue letter of appointment. Nevertheless, he could do so onlyGupon obtaining prior written approval of the of the competentauthority. No case has been made out in the Original Applicationthat due approval was granted by the competent authority beforeissue of the letter of appointment to the respondent. [Paras 16-17] [1025-G-H; 1026-C-D]

2. In absence of prior approval of the competent authority,the Director Incharge could not have hastened issuance of theappointment letter. The act of commission and omission of thethen Director Incharge would, therefore, suffer from the vice oflack of authority and nullity in law. [Para 17] [1026-E]

3. The subject office order dated 29.08.2000 opens withthe statement that the same was issued in compliance with theMinistry’s decision vide letter No.8-6/1999-ADMN.III dt.18.08.2000. By reference to the said communication-cum-decisionof the Ministry, it stood incorporated in the subject office order.Besides, the subject office order explicitly states that theappointment of the respondent was illegally made by the thenDirector Incharge. This reason of illegal appointment takes withinits fold the unilateral constitution of the Selection Board (not inaccordance with the prescribed constitution of the selectionBoard) and also the Director Incharge nominating himself as theChairman of such Board, although disqualified to be on the Boardbecause the candidate was related to him. As result, theMinistry took holistic decision, after reckoning all aspects of thematter including that it was not just solitary appointment of therespondent, but also other appointment letters issued by himunder his signature. All such appointments made by him cameunder the scanner as being fraudulent and without authority. Suchappointments would obviously be nullity in law. [Para 18] [1026-F-H; 1027-A-B]4. If the appointment letters are nullity, having been issuedby an officer who did not wield authority to do so, there was noquestion of observance of principles of natural justice even thoughthe affected party was not before the Court. The mere fact thatsuch letter of appointment had been issued in favour of therespondent does not bestow any right in his favour much less toinsist for an opportunity of being heard. In the fact situation ofthe present case, giving opportunity of hearing to the respondentbefore issuance of the subject office order was not an essentialrequirement and it would be an exercise in futility. [Paras 19, 22and 27] [1027-C-D; 1030-A; 1031-G]

5. The High Court has not analysed the efficacy of thecrucial reason recorded in the subject office order in its correct

Aperspective. The observation of the High Court that priorapproval of the competent authority was not mandatory, ismanifestly wrong. The appointment of respondent was not inconformity with the governing Rules and executive instructionsin that regard. The High Court also could not have interferedwith the subject office order solely on the ground that it was issuedBwithout affording an opportunity to the respondent. The officeorder records just and tangible reason as to why the appointmentof the respondent is illegal. Unless the core reason mentioned inthe subject office order was found to be untenable, the High Courtcould not have concluded that the subject office order was vitiatedCmerely because it was issued without notice or lack of opportunityto the respondent. Similarly, the fact that the Tribunal has takennote of other grounds urged by the parties (other than the reasonnoted in the subject office order), per se, cannot be the basis toinvalidate the subject office order which is otherwise just andproper. The High Court could have ignored those other reasons/Dgrounds taken into account by the Tribunal. [Paras 22-23] [1030-B-F]

Union of India & Ors. v. M. Bhaskaran (1995) Suppl.4 SCC 100 : [1995] 4 Suppl. SCR 526; KendriyaVidyalaya Sangathan & Ors. Vs. Ajay Kumar Das &EOrs. (2002) 4 SCC 503 : [2002] 3 SCR 609; State ofManipur and Ors. v. Y. Token Singh and Ors. (2007) 5SCC 65 : [2007] 2 SCR 965; M. C. Mehta v. Union ofIndia & Ors. (1999) 6 SCC 237 : [1999] 3 SCR 1173;Dhirender Singh & Ors. v. State of Haryana & Ors.F(1997) 2 SCC 712 : [1996] 9 Suppl. SCR 693 – reliedon.

D.K. Yadav v. J. M. A. Industries Ltd. (1993) 3 SCC259 : [1993] 3 SCR 930; The Remington Rand of IndiaLtd. v. The Workmen (1968) 1 SCR 164; KarnalGImprovement Trust, Karnal v. Parkash Wanti (Smt.)(Dead) and Anr. (1995) 5 SCC 159 : [1995] 1 Suppl.SCR 136; Montreal Street Railway Company v.Normandin AIR (1917) Privy Council 142 –distinguished.

State of U.P. & Ors. v. U.P. State Law Officers Association& Ors. (1994) 2 SCC 204 : [1994] 1 SCR 348; BhopalSingh v. State of Rajasthan (1988) 2 RLW 428 –referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1636of 2012.

From the Judgment and Order dated 23.04.2010 of the High CourtEof Rajasthan at Jodhpur in Civil Writ Petition No. 4235 of 2002.

A. K. Panda, Sr. Adv., Mrs. C. K. Sucharita, Shailender Saini,Raj Bahadur, D. S. Mahra, Advs. for the Appellants.

Dr. Manish Singhvi, Shailja Nanda Mishra, Satyendra Kumar,Yuvraj Simant, Irshad Ahmad, Advs. for the Respondent.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. The central questions posed inthis appeal are: (i) whether the appointment of the respondent to thepost of Veterinary Compounder, made by the Director Incharge at therelevant point of time without approval of the Competent Authority, wasa nullity or mere irregularity, which could be glossed over by thedepartment to avert disruption of his services and; (ii) in any case, whetherhis services could be disrupted without giving him an opportunity ofhearing.

A2. Briefly stated, the respondent was appointed to the post ofVeterinary Compounder in the Department of Animal Husbandry andDairying by one H.S. Rathore, the then Agriculture Officer, Central CattleBreeding Farms (CCBF), Suratgarh, who was purportedly authorisedonly to look after the current duties of the post of Director. Theappointment was made in November 1999 on provisional and temporaryBbasis, pursuant to the advertisement published in the newspaper on15.10.1999. However, by an office order dated 29[th] August, 2000 issuedunder the signature of Dr. M.N. Haque, Director, the services ofrespondent came to be terminated. The said order reads thus:

“Government of IndiaMinistry of AgricultureDepartment of All & Dairying……….Cattle Breeding FarmSURATGARH – 335 804 (Raj.)Dated the 29[th]August, 2000.

OFFICE ORDER

In compliance to Ministry’s decision vide their letter No.8-6/99-Admn.III dated 18[th]August, 2000, illegal appointment, of ShriRaghuwar Pal Singh S/o Shri Himat Singh Shekhawat to the post ofVeterinary Compounder, made by the then Director Incharge ShriEH.S. Rathore, agriculture Officer, without approval of theCompetent Authority, vide this office order No. 14-62/99-CPS/1562dated 24/30 November, 1999, is CANCELLED with immediate effect.Accordingly, his service stands terminated as per terms and conditionslaid down in point v) & vi) of the offer of appointment letter no.5-17/96-F99/CPS/1308 dated 16/22 November, 1999.

(Dr. M. N. Haque)DIRECTOR.”

(emphasis supplied)

3. The respondent assailed the said order by filing OriginalGApplication No.206 of 2000 before the Central Administrative Tribunal,Jodhpur Bench at Jodhpur, inter alia, on the ground that the appointmentwas made by the Board of Officers after they had duly considered thematter and who were competent to issue offer of appointment to therespondent. Further, if there was any irregularity in the appointmentHprocess, that could have been enquired into by the department, but without

taking recourse to any inquiry, the impugned termination order had beenissued. Such action was violative of Article 311 (2) of the Constitution ofIndia. According to the respondent, his appointment was made afterfollowing all the formalities by the department in fair and transparentmanner. He asserted that the department was therefore, estopped fromterminating his services. Further, the impugned order is not terminationsimpliciter but would cause prejudice to the respondent. It is stigmaticorder indicating that the appointment of the respondent was illegal, forwhich reason also, principles of natural justice ought to have been adheredto by the department.3. The appellants resisted the said Original Application, by filing adetailed affidavit. According to the appellants, the respondent had notapproached the Court with clean hands. In that, he has mentioned thenumbers of the relevant documents, which pertain to some other caseand not his order of appointment or termination. On merits, it was assertedby the appellants that the appointment of the respondent to the post ofVeterinary Compounder was not as per the law. It was made by thethen Director Incharge H.S. Rathore, Agriculture Officer and withoutapproval of the competent authority. On the date of issuing the appointmentletter, Shri H. S. Rathore had no authority to do so. It was asserted bythe appellants that pursuant to advertisement dated 15.10.1999,appointment could be made only in conformity with the relevantRecruitment Rules, as amended from time to time, titled ‘Central CattleBreeding Farm (Class III and IV Post) Recruitment Rules, 1969’. Interms of the said Rules, an interview was required to be conducted by aBoard comprising of three officers viz. Director of the Farm, Senior-most Technical Officer and one Government Officer of Central/StateGovernment. However, the selection process and interview in the presentcase were conducted by the Board unilaterally constituted by the saidH.S. Rathore, consisting of seven members including himself, beingDirector 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 StateFarm (SFCI Ltd.) (Not Central Govt. office)

3)Shri CS. Manohar, Asso. Professor Member Veterinary College,Bikaner (whereas Veterinary Officer is already there in theoffice itself)

A4)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 Central/State office)

6)Shri Baldev Singh, Agriculture Asstt. Member CCBF, SuratgarhB(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,Cthe respondent was the son of the younger brother-in-law of H.S. Rathore,the Director Incharge and Chairman of the Board. The Chairman ofthe Board had direct relation with and interest in the appointment of therespondent. It is then stated that as per the prescribed procedure,appointment is required to be made after obtaining prior approval fromthe competent authority i.e. Ministry of Agriculture, Department of AnimalDHusbandry and Dairying, New Delhi. That procedure was, admittedly,not adhered to before issuing the letter of appointment to the respondent.For all these reasons, the appointment of the respondent as made by thethen Director Incharge H.S. Rathore, Agriculture Officer, was withoutany authority of law. It was fraudulent appointment. When the sameEwas noticed by the department, soon thereafter, the subject office orderdated 29.08.2000 came to be issued. It was stated that the appointmentof two other candidates to the post of Junior Mechanic and TractorHelper made by H.S. Rathore as Director Incharge also came to becancelled by the department by issuing similar termination order. Inaddition, departmental action has been initiated against H.S. RathoreFfor committing serious misconduct and abusing his official position duringthe relevant period. The appellants pointed out that one Dr. B.S. Singhwas posted as Director CCBF, Suratgarh on ad hoc basis and was orderedto function as Head of Office during his tenure vide order dated21.02.1995. No authorization was given to H.S. Rathore to issue letterGof appointment. He was merely holding the post of Agriculture Officer.Considering the unilateral action of H.S. Rathore, major penaltymemorandum was issued to him by the department on 22.06.2001 inparticular with reference to the appointments made by him to the post ofVeterinary Compounder, Junior Mechanic, Tractor Helper and milkerand also on ad hoc basis to the post of LDC and UDC.H

4. The other two affected candidates had also challenged thetermination order passed against them by way of Original Applicationbefore the Central Administrative Tribunal, Jodhpur Bench, Jodhpur. TheTribunal heard all the three O.As together as the issues raised thereinwere similar.

5. The Tribunal, after analysing the relevant contentions of bothsides, opined that there was no infirmity in the termination order passedagainst the concerned applicant including the respondent herein. TheTribunal 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 AgricultureOfficer, CCBF, Suratgarh. This is apparent from the order dated22.12.99 (Arin.A/10 of OA 204/2000). It is also admitted factthat 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 thepost of Director, CCBF, Suratgarh. One Dr. B.S. Singh, wasearlier posted as officiating Director and declared Head of office.After posting of Dr. Singh, no declaration was made in favour ofShri Rathore for his continuation as Head of Office. Applicants’contention is ‘that since Dr. Singh, never took charge of theresponsibilities of Director, CCBF, Suratgarh, Shri H.S. Rathore,continued to function as Head of the Office. By order dated15.7.99 one Shri M.N. Haque, was posted as Director andordered to take over charge of the post of Director, CCBF,Suratgarh, from Shri H.S. Rathore. This order was stayed bythis Tribunal vide order dated 10.8.99, passed in OA 204/99. Asa consequence, Shri Rathore continued to look after the currentduties of the post of Director, CCBF, Suratgarh.

12. Now the question which arises for our considerationis whether an officer looking after the current duties of apost, could exercise the statutory power as vested in theregular 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 ofan appointment can exercise administrative or financial

powers vested in the full-fledged incumbent of the postbut he cannot exercise statutory powers whether thosepowers are derived direct from an act of parliament orrules Regulations and By-Law made under various Articlesof the constitutions (e.g., Fundamental RulesClassifications, Control and Appeal Rules Civil ServicesRegulations Delegations of Financial Powers Rules etc.)’

(emphasis supplied)

13. By order dated 15.7.99 Shri. M.N. Hague, was posted asDirector, CCBF, but only by virtue of the direction of this Tribunalin OA. 204/99, Shri Rathore, was permitted to look after thecurrent charge. Obviously, this would not have empoweredShri Rathore to exercise statutory powers of the post ofDirector. For the purpose of statutory powers, he was onlyan Agriculture Officer. Thus, the contention of the learnedcounsel for the applicant that Shri Rathore had been declared as‘Head of Office’ and so could have exercised powers ofappointment by virtue of Rule-2(j) of the CCS (CCA) Rules hasno force. In view of the specific clarification given under Rule-12 in Government of India’s Order No.2 that an officer holdingcurrent charge of duties of post cannot exercise statutorypowers. The conclusion is obvious that Shri H.S. Rathore,at the time of recruiting the applicants, was only aAgriculture Officer looking after the current charge of thepost of Director, CCBF, Suratgarh, and he had no authorityto make any appointment to Group – & D. It is clearcase of Shri Rathore exceeding his authority. Even if, hehad processed the appointment, offer of appointments,obviously could not have been made while and unless, hehad obtained approval from the Ministry of Agriculture.In fact, he did make reference to the Ministry on16.11.99 seeking approval or filling up these posts but forreasons best known to him, he did not wait for this approvaland went ahead and offered appointments to theseapplicants. This raise serious doubt about the motivebehind the haste on the part of Shri Rathore, in appointingthese applicants. The plea now taken on his behalf that suchapproval was not required has no basis at all. This is more so,when the rules clearly provide that an officer looking after thecurrent charge should not have exercised statutory powers ofappointments.

14. These appointments are vitiated on other grounds also.The fact that all the three applicants are related to ShriRathore, cannot be mere co-incidence and reflects onthe intention behind making these appointments. The waysthe selection committee has been constituted by includingeven Group-C members, is indicative of the irregularpractice knowingly adopted by Shri Rathore while makingthese appointments.”

(emphasis supplied)

7. The Tribunal then adverted to the legal position that anyappointment made de hors the statutory rules has no validity and thatthose who come by the back door have to return by the same back doorand cannot claim protection of principles of natural justice. For that, theTribunal relied on the exposition of this Court in the case of Union ofIndia & Ors. Vs. M. Bhaskaran[1], State of U.P. & Ors. Vs. U.P. StateLaw Officers Association & Ors.[2]and Kendriya Vidyalaya Sangathan& Ors. Vs. Ajay Kumar Das & Ors.[3]and in conclusion, observed thus:

“17. In this case, Shri H.S. Rathore, not only acted totallyarbitrarily on every step of the process of recruitment but, actedbeyond his powers and jurisdiction while making the appointment.For the view we have taken that these appointments were madeby an authority not competent to make such appointments, wedo not consider it necessary to go into the other aspects of thecontroversy that one the appointees did not possess the requisitequalifications or that the currency of the sanction of the postshad expired.

18. It is clear from the discussions in the preceding paragraphsthat these appointments have been made in totally irregularmanner by an authority not competent to make suchappointments. The appointment letters have been rightly

1 (1995) Suppl. 4 SCC 100

2 (1994) 2 SCC 204

3 (2002) 4 SCC 503

1022SUPREME COURT REPORTS

Acancelled and orders of cancellation do not call for anyinterference by this Tribunal. The applicants have miserably failedto establish any case in their favour. We dismiss these O.A. astotally devoid of merits. No order as to costs.”

8. Feeling aggrieved, the respondent filed writ petition in theBHigh Court of Judicature for Rajasthan at Jodhpur, being D. B. CivilWrit Petition No. 4235 of 2002. The Division Bench of the High Court,by judgment and order dated April 23, 2010, upheld the argument of therespondent that the Office Order dated 29.08.2000 merely records onefact that the appointment of the respondent was made without approvalof the competent authority. In such case, the services of respondentCcould be terminated only after giving him opportunity of hearing. TheHigh Court observed thus:“Upon perusal of the above order, it is abundantly clear that theonly reason for termination of the services of the petitioner wasthat appointment was made without approval of the competentDauthority. No other ground with regard to competence of theDirector or with regard to allegation against the Director formaking illegal appointment is incorporated for establishing theallegations. In this view of the matter, the reason for terminationof the services was not made known to the petitioner becauseEthe department neither issued any notice nor provide anyopportunity of hearing to the petitioner before passing order dated29.08.2004. The only reason for terminating his services is thatappointment was made without approval of the competentauthority; meaning thereby, for contesting the matter before theTribunal the grounds other than the basic ground were submittedFbefore the Tribunal which were meant to be basis for terminatingthe services of the petitioner; meaning thereby, the groundsagitated before the Tribunal were altogether different than thereasons incorporated in the order Annex. – 4. In this view of thematter, we are of the opinion that order of termination suffersGfrom arbitrariness and illegality, so also, passed against theprinciples of natural justice.

We are unable to understand the reason incorporated in thereply filed by the respondents before the Tribunal because thereasons incorporated in the reply for terminating the service ofthe petitioner are not mentioned in the termination order.”

9. The High Court then adverted to the decision of D.K. YadavVs. J.M.A. Industries Ltd.[4] and the decision of the Division Bench ofthe same High Court in the case of Bhupal Singh Vs. State ofRajasthan[5]. Thereafter, the High Court concluded as follows:

“Upon assessment of the termination order, we are of the opinionthat the Tribunal has committed gross error while dismissing theoriginal application filed by the petitioner. So also, the terminationorder dated 29.8.2000 issued in violation of the principles of naturaljustice by the Department for terminating the services of thepetitioner is patently illegal order and the same deserves to bequashed.

Hence, while following the judgment of Hon’ble Supreme Courtin D.K. Yadav’s case (supra) and judgment of the Division Benchof this Court in the case of Bhupa Singh Vs. State of Rajasthan(supra), this writ petition is allowed. The impugned judgmentdated 06.06.2002 passed by the Tribunal in Original ApplicationNo.206/2000 is set aside. The order dated 29.08.2000 (Annex.-4 to the original application), terminating the services of thepetitioner, is quashed and set aside. Further, it is made clear thatas consequence of quashing termination order Annex. – 4, thepetitioner will be entitled to all consequential benefits except back-wages and petitioner shall be reinstated in service forthwith.Respondents will, however, be at liberty to pass fresh order forterminating the services of the petitioner, in accordance withlaw, if valid and lawful grounds exist to show that petitioner hascommitted any illegality while seeking appointment.”

The High Court thus opined that the termination order could be passedonly after giving opportunity to the respondent and not otherwise.

10. Being aggrieved, the appellants filed the present Special LeavePetition. This Court not only granted leave to appeal but also stayed theoperation of the impugned judgment during the pendency of the appealbefore this Court.

11. According to the appellant, the High Court committedmanifest error in overturning well considered decision of the Tribunal.For, the fact that no prior approval of the competent authority as required

4 (1993) 3 SCC 259

5 (1988) 2 RLW 428

Aunder the statutory rules had been obtained before issuing the letter ofappointment in favour of the respondent, is indisputable. That reasonhas been explicated in the subject office order dated 29.08.2000. TheHigh Court, without recording any opinion on the efficacy of that reason,proceeded to set aside the subject office order on the ground that noopportunity was given to the respondent before issuing the same. RelyingBon the exposition in the cases of Kendriya Vidyalaya Sangathan (supra)and State of Manipur and Ors. Vs. Y. Token Singh and Ors.[6], it iscontended that giving prior opportunity to the respondent before issuingthe subject office order was not obligatory; and no fruitful purposewould have been served by giving such notice. The High Court, therefore,Cwas manifestly wrong. It is submitted that prior approval of the competentauthority is the quintessence for issuing valid and legal appointmentorder. Whereas, appointment order issued in favour of the respondentbeing void ab initio, the competent authority was duty bound to takecorrective and remedial action in the matter. That brooked no delay.D12. It is also submitted that the High Court mainly recorded three

D12. It is also submitted that the High Court mainly recorded threeaspects to interfere with the impugned office order. First, that the officeorder does not state that the Director Incharge was not competent toissue the appointment letter. Additionally, there is no tittle of indication inthe said order that the appointing authority committed any illegality inmaking appointment. Second, the reason for termination of services ofErespondent was not made known to him by issuing notice or by providinghim an opportunity of hearing. Third, the Tribunal took extraneous factsinto account to uphold the subject office order, by adverting to groundsnot referred to therein. It is submitted that none of the above, dealt withthe core reason noted in the subject office order - that the same wasFnecessitated as an illegal appointment had been made by the then DirectorIncharge H.S. Rathore, Agriculture Officer and without prior approvalof the competent authority. The appellant therefore, submits that theimpugned decision of the High Court is manifestly wrong and deservesto be set aside and the order of the Tribunal ought to be restored, upholdingthe office order dated 29.08.2000.G

13. Per contra, the respondent has supported the reasons recordedby the High Court and vehemently contends that no interference iswarranted. According to the respondent, the appointment of therespondent has been made after adhering to necessary formalities

H6 (2007) 5 SCC 65

pursuant to public advertisement, wherein the respondent emerged asthe successful candidate. Only thereafter he was appointed to the postof Veterinary Compounder. It is submitted that the respondent acquiredan indefeasible right to remain on that post and in service. According tothe respondent, his services could not be terminated without affordingopportunity of hearing. Only upon affording opportunity, the respondentcould have been able to point out that there was no illegality in hisappointment. Inasmuch as lack of approval of the competent authoritybefore issuance of the letter of appointment, does not render theappointment void but at best, an irregularity. Since the appointment wasnot void ab initio, no termination order could be issued without affordingopportunity to the respondent. The respondent has relied on the decisionsof this Court in the case of The Remington Rand of India Ltd. Vs.The Workmen[7], Karnal Improvement Trust, Karnal Vs. ParkashWanti (Smt.) (Dead) and Anr.[8]and Montreal Street Railway CompanyVs. Normandin[9]. The respondent contends that the mere fact that theHigh Court has not dealt with the reason stated in the subject officeorder about the lack of approval of competent authority, can be no basisto whittle down the indefeasible right enured to him. Further, deprivationof opportunity of hearing before passing the termination order was fatalas the said order entailed civil consequences to him. The respondentprays 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. ShailjaNanda Mishra, Mr. Satyendra Kumar, Mr. Yuvraj Simant and Mr. IrshadAhmad, learned counsels for respondent.

15. Reverting to the subject office order, we are in agreementwith the stand taken by the appellant that the same is simplicitertermination and is no reflection on the conduct of the respondent. Itmerely explicates that his appointment was illegal having been made bythe then Director Incharge H.S. Rathore, Agriculture Officer and withoutprior approval of the competent authority. No more and no less.

16. We shall now consider the efficacy of the reason so recordedin the office order. The recruitment procedure in relation to the post of

7 (1968) 1 SCR 164

8 (1995) 5 SCC 159

9 AIR (1917) Privy Council 142

AVeterinary Compounder is governed by the statutory rules titled ‘CentralCattle Breeding Farms (Class III and Class IV posts) Recruitment Rules,1969, as amended from time to time and including the executiveinstructions issued in that behalf. As per the stated dispensation for suchrecruitment, the appointment letter could be issued only by an authorisedofficer and after grant of approval by the competent authority. Nowhere inBthe Original Application filed by the respondent, it has been asserted that suchprior approval is not the quintessence for issuing letter of appointment.17. For taking this contention forward, we may assume, for thetime being, that the then Director Incharge H.S. Rathore, AgricultureOfficer had the authority to issue letter of appointment. Nevertheless,Che could do so only upon obtaining prior written approval of the competentauthority. No case has been made out in the Original Application thatdue approval was granted by the competent authority before issue ofthe letter of appointment to the respondent. Thus, it is indisputable thatno prior approval of the competent authority was given for the appointmentDof the respondent. In such case, the next logical issue that arises forconsideration is: whether the appointment letter issued to the respondent,would be case of nullity or mere irregularity? If it is case of nullity,affording opportunity to the incumbent would be mere formality andnon grant of opportunity may not vitiate the final decision of terminationof his services. The Tribunal has rightly held that in absence of priorEapproval of the competent authority, the Director Incharge could nothave hastened issuance of the appointment letter. The act of commissionand omission of the then Director Incharge would, therefore, suffer fromthe vice of lack of authority and nullity in law.

18. There is yet another aspect which has been glossed over byFthe High Court. The subject office order dated 29.08.2000 opens withthe statement that the same was issued in compliance with the Ministry’sdecision vide letter No.8-6/1999-ADMN.III dt.18.08.2000. By referenceto the said communication-cum-decision of the Ministry, it stoodincorporated in the subject office order. Besides, the subject office orderGexplicitly states that the appointment of the respondent was illegally madeby the then Director Incharge H.S. Rathore, Agriculture Officer. Thisreason of illegal appointment takes within its fold the unilateral constitutionof the selection Board (not in accordance with the prescribed constitutionof the selection Board) and also H.S. Rathore nominating himself as theChairman of such Board, although disqualified to be on the Board becauseH

the candidate was related to him. As result, the Ministry took holisticdecision on 18.08.2000 at the highest level after reckoning all aspects ofthe matter including that it was not just solitary appointment of therespondent, but also other appointment letters issued by H.S. Rathoreunder his signature. All such appointments have been nullified by theMinistry in the same manner in addition to initiating departmental actionagainst H.S. Rathore. Tersely put, all appointments made by H.S. Rathorecame under the scanner as being fraudulent and without authority. Suchappointments would obviously be nullity in law.

19. The Tribunal had justly relied on the exposition in the casesof M. Bhaskaran (supra) and in particular, Kendriya VidyalayaSangathan (supra). In the latter case, in paragraph 5 of the reporteddecision, while dealing with similar situation, the Court observed that ifthe appointment letters are nullity, having been issued by an officer whodid not wield authority to do so, there was no question of observance ofprinciples of natural justice even though the affected party was not beforethe Court.

20. In the case of State of Manipur (supra), the appointmentletters were cancelled on the ground that the same were issued withoutthe knowledge of the department of the State. The Court after advertingto the reported decisions concluded that the candidates were not entitledto hold the posts and in case of such nature, principles of natural justicewere not required to be complied with, particularly when the same wouldresult in futility. It may be useful to advert to paragraph 22 of the reporteddecision, which reads thus:“22. The respondents, therefore, in our opinion, were not entitledto hold the posts. In case of this nature, where the factsare admitted, the principles of natural justice were notrequired to be complied with, particularly when the samewould result in futility. It is true that where appointments hadbeen made by competent authority or at least some steps havebeen taken in that behalf, the principles of natural justice arerequired to be complied with, in view of the decision of this Courtin Murugayya Udayar[10].”

(emphasis supplied)

10 (1991) Supp. (1) SCC 331

20. In paragraph 30 of the reported decision, the Court advertedto the exposition in M.C. Mehta Vs. Union of India & Ors.[11]whichevolved the ‘useless formality’ theory. It is apposite to reproduceparagraphs 30 to 32 of the reported judgment, which read thus:

“30. In M. C. Mehta Vs. Union of India this Court developedthe “useless formality” theory stating: (SCCPP.246-47, para 22)

“More recently Lord Bingham has deprecated the ‘uselessformality’ theory in R.v. Chief Constable of the Thames ValleyPolice Forces, ex p Cotton[12] by giving six reasons. (See alsohis article ‘Should Public Law Remedies be Discretionary?C1991 PL, p.64.) detailed and emphatic criticism of the ‘uselessformality theory’ has been made much earlier in ‘NaturalJustice, Substance or Shadow’ by Prof. D.H. Clark of Canada(see 1975 PL, pp. 27-63) contending that Malloch and Glynnwere wrongly decided. Foulkes (Administrative Law, 8[th] Edn.,1996, p.323), Craig (Administrative Law, 3[rd] Edn., p. 596) andDothers say that the Court cannot prejudge what is to be decidedby the decision-making authority. De Smith (5[th] Edn., 1994,paras 10.031 to 10.036) says courts have not yet committedthemselves to any one view though discretion is always withthe court. Wade (Administrative Law, 5[th] Edn., 1994, pp. 526-E30) says that while futile writs may not be issued, distinctionhas to be made according to the nature of the decision. Thus,in relation to cases other than those relating to admitted orindisputable facts, there is considerable divergence of opinionwhether the applicant can be compelled to prove that theoutcome will be in his favour or he has to prove case ofFsubstance or if he can prove ‘real likelihood’ of success or ifhe is entitled to relief even if there is some remote chance ofsuccess. We may, however, point out that even in cases wherethe facts are not all admitted or beyond dispute, there is aconsiderable unanimity that the courts can, in exercise of theirG‘discretion’, refuse certiorari, prohibition, mandamus orinjunction even though natural justice is not followed. We mayalso state that there is yet another line of cases as in State

11 (1999) 6 SCC 237

12 (1990) IRLR 344

Bank of Patiala Vs. S.K. Sharma[13], Rajendra Singh Vs.State of M.P.[14]that even in relation to statutory provisionsrequiring notice, distinction is to be made between caseswhere the provision is intended for individual benefit and wherea provision is intended to protect public interest. In the formercase, it can be waived while in the case of the latter, it cannotbe 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 thesaid Dr. K.C. Rakesh, the orders of appointment are issued,such orders are not valid. If such appointment orders are anullity, the question of observance of principles of naturaljustice would not arise.”

32. In Bar Council of India Vs. High Court of Kerala[15]itwas stated : (SCC p.323, para45)

“Principles of natural justice, however, cannot bestretched too far. Their application may be subject to theprovisions of statute or statutory rule.”

(emphasis supplied)

In the present case, the appointment letter was admittedly issued withoutthe 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 interferedwith by the Court as admittedly the same was not approved by thecompetent authority. The underlying principle will apply proprio vigoreto the present case, as the letter of appointment has been issued by anofficer who had no authority to do so and also because it was issuedwithout waiting for the approval of the competent authority. Resultantly,there was no necessity to afford opportunity to the respondent beforeissuing the letter of cancellation of such appointment. The mere fact

13 (1996) 3 SCC 364

14 (1996) 5 SCC 460

15 (2004) 6 SCC 311

16 (1997) 2 SCC 712

Athat such letter of appointment had been issued in favour of the respondentdoes not bestow any right in his favour much less to insist for anopportunity of being heard.

22. Reverting to the impugned decision of the High Court, theHigh Court has not analysed the efficacy of the crucial reason recordedBin the subject office order dated 29.08.2000 in its correct perspective.Indeed, the High Court has noted that prior approval of the competentauthority was not mandatory. That observation, in our opinion, is manifestlywrong. We affirm the view expressed by the Tribunal that the appointmentof respondent was not in conformity with the governing Rules andexecutive instructions in that regard.C

23. Further, the High Court could not have interfered with thesubject office order solely on the ground that it was issued withoutaffording an opportunity to the respondent. The other reason which hadweighed with the High Court, in our opinion, will be of no avail to thefact situation of the present case. To wit, the fact that the subject officeDorder does not attribute any motives to the then Director Incharge, canbe no basis to invalidate the same. In our opinion, the office order recordsjust and tangible reason as to why the appointment of the respondent isillegal. Unless the core reason mentioned in the subject office order wasfound to be untenable, the High Court could not have concluded that theEsubject office order was vitiated merely because it was issued withoutnotice or lack of opportunity to the respondent. Similarly, the fact thatthe Tribunal has taken note of other grounds urged by the parties (otherthan the reason noted in the subject office order), per se, cannot be thebasis to invalidate the subject office order which is otherwise just andproper. The High Court could have ignored those other reasons/groundsFtaken into account by the Tribunal.

24. Reverting to the decisions relied upon by the respondent, wefail to understand as to how the decision in the case of The RemingtonRand of India Ltd. (supra) will be of any avail to the respondent. Inthat case, the Court was called upon to consider the effect of notGpublishing the award passed by the Hon’ble Tribunal within the statutoryperiod. In the context of that question, the Court opined that the provisionin Section 17(1) of the Industrial Disputes Act was merely directory andnot mandatory and on that basis concluded that publication of awardbeyond 30 days would not make it invalid. In the present case, the letterHof appointment could be issued by the designated director and only after

grant of prior approval from the competent authority (the superiorauthority in the hierarchy of administrative set up). Without such approval,the then Director Incharge in no case could have rushed through theprocess of issuing the letter of appointment, an action which was withoutauthority of law and nullity.

25. In the case of Karnal Improvement Trust, Karnal (supra),the Court considered the distinction between ministerial acts and statutoryor quasi judicial functions under the statute and, in that context, observedthat something should be done or in particular manner and expresslydeclaring what shall be the consequence of non compliance, the effectthereof would be to treat the infraction as mere directory requirementand not invalidate the action, so as to disregard the same. The principleexpounded in this decision will be of no avail to the respondent. In lightof factual matrix of this case, the letter of appointment in favour of therespondent was issued illegally by the Director Incharge H.S. Rathore,Agriculture Officer and without prior approval of the competent authority.It was nullity.

26. Even the case of Montreal Street Railway Company (supra)cannot come to the rescue of the respondent. In the present case, therequirement to obtain prior approval of the competent authority has beenmade an essential requirement and only then would the appointing authoritybe competent to issue letter of appointment. For, after the proposal issubmitted for approval to the competent authority through proper channelby the official duly authorised to do so, the competent authority wouldreckon all aspects of the matter including whether the selection processhas been properly followed in all respects. That would include the questionsuch as whether the then Director Incharge could have constituted theBoard of seven members, contrary to the established norms and moresoto act as Chairman of such Board after full knowledge that the candidateappearing for the interview was his relative.

27. We have no hesitation in concluding that in the fact situationof the present case, giving opportunity of hearing to the respondent beforeissuance of the subject office order was not an essential requirementand 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 HighCourt, in our opinion, has no application to the fact situation of the presentcase concerning an appointment which is void ab initio and nullity.

1032SUPREME COURT REPORTS

[2018] 4 S.C.R.

A28. Accordingly, we set aside the impugned judgment and orderof the High Court and restore the judgment of the Central AdministrativeTribunal dated 06.06.2002, dismissing the Original Application filed bythe respondent.

30. The appeal succeeds in the above terms with no order as toBcosts.

Kalpana K. Tripathy Appeal allowed.