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WA No. 334 of 2011

IN THE GAUHATI HIGH COURT(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR; TRIPURA;

MIZOAM AND ARUNACHAL PRADESH)

WRIT APPEAL NO. 334/2011

1. Bodoland Territorial CouncilRepresented by the Secretary, BTC,Kokrajhar, Assam.

2. The Secretary, Education, BTC,Kokrajhar, Assam.

3. The Director of Education, BTC,Kokrajhar, Assam.

…………….appellants - Versus -Krishna HaloiS/o. Harkanta Haloi,R/o. Vill. Athiabari,PO. Athiabari,PS. Borbori, Dist. Baksa,BTAD.

……..respondent

P R E S E N TTHE HON’BLE MR. JUSTICE I A ANSARI

THE HON’BLE MR. JUSTICE P.K. MUSAHARY

For the appellants : Mr. D. Das, Sr. Advocate Ms. M. Bordoloi, Advocate, Mr. H. Nath, Advocate

For the respondent : Mr. A. Deka, Advocate, Ms. N. Saikia, Advocate

Date of hearing : 06.01.2012Date of Judgment : 25.01.2012

JUDGMENT & ORDER

(Ansari, J.)The challenge, in this writ appeal, is against the judgment and

order, dated 28.07.2011, passed, in WP(C) No. 5331/2009, by a

learned Single Judge of this Court, who, while allowing the writ

petition, set aside the order, dated 23.06.2009, passed by the Director

of Education, Bodoland Territorial Council, Kokrajhar, whereby the

service of the writ petitioner was terminated on, chiefly, four grounds,

namely, (i) that the order of termination was not preceded by any

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notice to show cause against the termination of the appointment of the

petitioner as an Assistant Teacher in ME School, (ii) that the order of

termination had been passed after 11 (eleven) years of the

appointment of the writ petitioner, (iii) that the order of termination is

vague and (iv) that the petitioner’s appointment, as an Assistant

Teacher, had been confirmed many years back.

2. We have heard Mr. D. Das, learned Senior counsel, appearing on

behalf of the appellant, and Mrs. N. Saikia, learned counsel for the

writ petitioner-respondent.

3. Before coming to the merit of the present appeal, it is apposite to

take note of the order, which stood impugned in the writ petition,

whereby the service of the writ petitioner (respondent herein) had been

terminated, the order having been issued, on 23.06.2009, by the

Director of Education, Bodoland Territorial Council, Kokrajhar. The

order, in question, reads as under:

“GOVT. OF ASSAMOFFICE OF THE DIRECTOR OF EDUCATION, BTC, KOKRAJHAR

ORDER

Dated Kokrajhar the 23rd June/2009.

No. DE/BTC/Apptt-124/09/278, In exercise of power conferred upon

the Director of Education vide Secretary, BTC’s No. BTC/EDN(EI)-

35/2005/1, dtd. 13-09-2005 and in pursuance of order Secretary BTC’s

vide letter No. BTC/EDN/TERM-514/2008/3, dtd. 6th Nov/2008, the

services of Krishna Haloi, AT, Uttar Kamrup MEM (doubtful) is hereby

terminated from service with immediate effect due to non-fulfilling the

following terms & conditions.

A. Advertisement issued by the DEEO, D.I. of Schools of Nalbari

inviting application as a candidates to fill-up the posts in the

schools.

B. Approval of State Level Empowered Committee of the personal

department of Govt. of Assam to fill-up the posts.

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C. The records of holding interview and preparation of score

sheets by the interview Board.

D. List of selected candidates indicating vacancies of the schools

to fill-up the selected candidates.

E. Approval of EBAC for the appointment.

Sd/- R. S. Borgayary,Director of Education,

Bodoland Territorial Council,Kokrajhar

Memo No. DE/BTC/Apptt-124/09/278-A, Dated Kokrajhar the23rd June/2009.

Copy to:1. The PS to the Executive Member, Education, BTC,

Kokrajhar, for information.2. The Secretary, Education, BTC, Kokrajhar, for favour of

information.3. The DEEO, Baska, Mushalpur, for information.4. The BEEO, Baska, Mushalpur/Tamulpur/Tihu-Barama

for information.5. Sri Diganta Das, Sr. Advocate, Gauhati High Court &

Standing counsel, BTC, Kokrajhar, for information.6. The Headmaster/Head teacher, Uttar Kamrup MEM for

information.7. The person concerned.8. Office guard file.

Sd/- R. S. Borgayary,Director of Education,

Bodoland Territorial Council,Kokrajhar”

4. From a bare reading of the order, dated 23.06.2009, which has

been set aside by the learned Single Judge, what can be clearly

gathered from the order, dated 23.06.2009 (whereby the writ

petitioner’s service was terminated), is the fact that there were four

specific grounds, which were mentioned in the order of termination.

These grounds were as follows:

“1. That no advertisement had been issued by the DEEO, D.I. of

Schools, Nalbari, inviting applications from eligible candidates to

fill up the posts in the schools.

2. That necessary approval of State Level Empowered Committee

of the Personnel Department, Govt. of Assam, to fill up the posts

had not been taken.

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3. That there was no record available with regard to holding of

interview and/or preparation of score-sheets by the interview

Board.

4. No list of selected candidates, indicating vacancies of the

schools, was available to appoint the selected candidates.

5. Necessary approval of EBAC for the appointment had not been

obtained.”

5. Thus, the order, dated 23.6.2009, is not a vague order inasmuch

as it assigned grounds, which led to the termination of the writ

petitioner’s appointment. There is no doubt that the order of

termination was not preceded by any notice to show cause against the

proposed termination. This by itself is, however, not sufficient, under

the law, to set aside an order of termination unless the writ petitioner

can show that absence of notice has caused prejudice to him. The

reason for insisting on a notice before termination of an employee’s

service is that the employee must receive an opportunity to show

cause against the grounds on which his appoint is sought to be

terminated. This does not, as a corollary, necessarily mean that an

order of termination must be set aside, whenever it is not preceded by

a notice to show cause. It is within the ambit of the power of the

Court to ask the employee as to what would have been his reply, had

be been served with a notice to show cause. If the reply of the

employee reveals that the conclusion, reached by the employer to

terminate the service of the employee, without serving any notice on

the employee to show cause, would have remained the same, had the

employee been served with a notice to show cause, the Court would

not interfere with the order of termination, for, in such a case, no

prejudice can be said to have been caused to the employee concerned.

The test, in such cases, always lies in determining as to whether any

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prejudice has been caused to an employee for not giving him any

notice to show cause or for not supplying to him enquiry report, which

becomes the basis of imposition of punishment. Reference, in this

regard, made to the case of Union of India Vs. Bisamber Das Dogra,

reported in (2009) 13 SCC 102, wherein the Supreme Court took note

of various decisions, including its decision in Umrao Singh

Choudhary (Dr.) Vs. State of M.P., reported in (1994) 4 SCC 328,

and Syndicate Bank Vs. Venkatesh Gururao Kurati, reported in

(2006) 3 SCC 150, and concluded to the effect that to sustain the

allegation of violation of principles of natural justice, one must

establish that prejudice has been caused to him for non-observance of

principles of natural justice. The relevant observations, appearing in

para 12 and 13 of Bisamber Das Dogra (supra), read as under:

“12. In Umrao Singh Choudhary (Dr.) v. State of M.P., this Court

held (SCC p. 331, para 4) that the principles of natural justice do

not supplant the law, but supplement the law.

13. In Syndicate Bank v. Venkatesh Gururao Kurati, it was held:18. … To sustain the allegation of violation of principles of natural

justice, one must establish that prejudice has been caused to him

for non-observance of principles of natural justice.”

6. One may also refer to the case of Haryana Financial

Corporation Vs. Kailash Chandra Ahuja, reported in (2008) 9 SCC

31, wherein the Court, referring to the case of ECIL Vs. B. Karunakar,

reported in (1994) SCC Suppl (2) 391, pointed out that even failure to

supply the report of the enquiry before imposition of punishment on

the delinquent employee would not ipso facto result in the proceedings

being declared null and void nor would, in such a case, the order of

punishment become non est and ineffective and that it is for the

delinquent employee to plead and also prove that non-supply of

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enquiry report has caused prejudice to him and that miscarriage of

justice has resulted thereby and, if the employee fails to satisfy the

Court on this score, the order of punishment cannot be automatically

set aside.

7. The case of Secretary, Andhra Pradesh Social Welfare

Residential Educational Institutions Vs. Pindiga Sridhar, reported

in (2007) 13 SCC 352, is also one of the cases, where the Court laid

down that violation of the principles of natural justice must result in

prejudice to the employee concerned in order to enable the Court to

interfere with an order passed adverse to his interest. In the case of

Pindiga Sridhar (supra), the respondent applied for appointment, on

compassionate ground, as a dependant of late P. Andhru without

disclosing that his mother was in State’s service, as teacher, in a High

School. The Court, in Pindiga Sridhar (supra), pointed out that by

suppressing that his mother was already in Government service, the

petitioner had committed fraud and, in the face of such admitted facts,

the order of termination of his service could not have been interfered

with merely because no notice to show cause was given to him,

specially, when no prejudice could be shown to have been caused to

him as a result of the omission to give him the notice to show cause, if

any, before termination of his service.

8. In the case at hand, except pleading to the effect that no notice

to show cause was given before the order of termination was passed, it

was neither pleaded nor proved as to what prejudice had been caused

to the writ petitioner-respondent as a result of the omission to give

notice to the petitioners before their services were terminated.

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9. In order, therefore, to determine if any prejudice has been

caused to the petitioner-respondent by not giving him any notice to

show cause, it is necessary to look into the background of not only the

order of appointment of the petitioner, as an Assistant Teacher, but

also the subsequent admitted developments, which led to the

termination of the petitioner-respondent’s appointment. The admitted

facts may, now, be taken note of:

10. The writ petitioner-respondent’s appointment commenced with

the order, dated 27.10.1998, passed by the District Elementary

Education Officer, Nalbari. This order, being the basis of the entire

edifice of the writ petitioner-respondent’s case, is extracted below:

“OFFICE OF THE DISTRICT ELEMENTARY EDUCATION OFFICER,NALBARI (ASSAM)

ORDER

Subject to termination without notice and without assigning

any reason thereof Sri Krishna Haloi PU is hereby appointed with

effect from the date of his joining as Asstt. Teacher in the scale of

pay Rs. 1185-20-1225-30-1435-40-1555-EB-1635-50-2035-60-

2395/- p.m. plus other allowances as admissible under Rules in

Uttar Kamrup ME Madrasa School against the sanctioned post

vide Govt. of Assam sanctioning letter No. PFA/337/95/pt-1/152

dated 24/4/98 and DEE’s communicated letter No.

EPD/OB/6/96/156 dtd. 24th April/98.

The appointment is made as per approval of Sub Divisional

Advisory Board, Elementary Education, BAC, Nalbari.

The examination will be debitable to the Head of account

02202-Conl-Edn-III-Centrally Sponsored Scheme-01-Ele-Edn-102-

Assistance to Non-Govt. Pry. School (C) Operation Black Board (I)

Salary (Plan) 1998-99.

Sd/- A. Choudhury,Dist. Elementary Education Officer,

Nalbari.Memo No. DE/Nal/ESSTT-94/3/BAC/pt-I/2940-47, dtd. Nalbarithe 27th Oct/98.”

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11. A bare glance on the above order of appointment clearly shows

that the appointment of the writ petitioner-respondent was not against

any regular sanctioned post, but against a post, which had been

created pursuant to a Centrally Sponsored Scheme and this scheme

was, admittedly, known as Operation Black Board. The order of

appointment of the writ petitioner-respondent also clearly shows that

so long as the scheme was to continue, the appointment of the writ

petitioner-respondent was to continue unless, otherwise terminated

earlier. The writ petitioner’s appointment was, it is transparent,

inherently temporary in nature depending upon the continuation of

the scheme knows as Operation Black Board (in short, ‘OBB’). The

post, to which the writ petitioner-respondent stood appointed, was,

thus, a ‘plan’ post and not a ‘non-plan’ post. The difference between a

‘plan’ post and a ‘non-plan’ post is that a ‘plan’ post is a post under a

temporary scheme or plan meaning thereby that so long as the scheme

or plan continues, the appointment continues. As against this nature

of appointment of ‘plan’ post, appointment against ‘non-plan’ post

means that the post is perpetual in nature unless done away with.

12. The writ petitioner-respondent’s appointment, as an Assistant

Teacher, by order, dated 27.10.1998, aforementioned was, thus, we

may reiterate, inherently temporary in nature with no permanency

attached thereto in the sense that that the appointment would have

continued as long as the scheme, sponsored by the Central

Government and commonly known as OBB (Operation Black Board)

continued.

13. What is also required to be noticed is that the order, dated

27.10.1998 (whereby the writ petitioner stood initially appointed) was

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in consequence of the letter, dated 24.04.1998, which had been issued

by the Director of Elementary Education, Government of Assam, to the

District Elementary Education Officer, Nalbari, informing him of

sanctioning of posts of teacher for primary schools under the scheme,

namely, Operation Black Board. The letter, dated 24.04.1998, reads

as under:

“GOVT. OF ASSAMOFFICE OF THE DIRECTOR OF ELEMENTARY EDUCATION:ASSAM: KAHILIPARA; GUWAHATI-19

NO. CPO/08/6/96/156, dated Kahilipara the 24th April/98

To,

The District Elementary Education Officer,Nalbari”

Sub: Sanctioning of post for Upper Primary schools under thescheme of Operation Black Board.Ref: Govt. letter No. PMA. 337/95, Pt-1/152 dtd. 24.4.98.

Sir,With reference to the above, I have the honour to

communicate the sanction of posts under the scheme of Operation

Black Board Two Hundred Thirteen No. of schools have been

selected under the scheme for your District (list enclosed) and

each school will receive only one post and accordingly two

hundred thirteen No. of posts are hereby sanctioned for your

district. You are further requested to see to it that no school in the

enclosed list gets more than one post and no school outside the

list is considered for the purpose of entertainment of post.

You are therefore requested in strictly follow the above

guideline while utilizing the sanctioned posts.

These posts of Asstt. Teachers bear scale of pay of Rs.

1185-2395/- p.m. plus other allowances as admissible under the

Rules and are created for the period upto 28-02-99 from the date

of entertainment. These posts will be abolished after the 9th plan

period is over and the incumbents will have to be

adjusted/absorbed in the existing vacancies.

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The expenditure will be debitable to the Head of Account

“2202-General Education-III-Centrally Sponsored Scheme 01-Ele-

Education 102-Assistance to non-Govt. Pry. Schools (C)-Operation

Black Board (i) Salary (Plan)” during 1998-99.

Yours faithfully,

DirectorElementary Education, Assam,

Kahilipara, Guwahati-19”

14. From the letter, dated 24.04.1998, what becomes crystal clear is

the fact that the post, against which the writ petitioner-respondent

had come to be appointed, was a ‘plan’ post under OBB scheme and

his post, along with all other such posts, were to be abolished with the

end of the ‘ninth plan’ and the incumbents were to be

adjusted/absorbed, in the existing vacancies, if any.

15. A combined reading of the letter, dated 24.04.1998, and

17.08.2000, make it abundantly clear that the writ petitioner-

respondent’s post was a ‘plan’ post and unless the writ petitioner-

respondent’s appointment was converted into a regular appointment

by appointing him to a regular post against a ‘non-plan’ post, the writ

petitioner-respondent’s appointment was to be over on 28.02.1999.

What logically follows from the above discussion is that the writ

petitioner-respondent could have been adjusted/absorbed against a

‘non-plan’ post, but the question of converting the ‘plan’ post into a

‘non-plan’ post did not arise, because the scheme did not perceive any

such conversion.

16. What is, now, important to note is that the order, dated

17.08.2000, which, according to the writ petitioner-respondent, is the

order of conversion of his plan post into a ‘non-plan’ post, read as

under:

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“OFFICE OF THE DISTRICT ELEMENTARY EDUCATION OFFICER,NALBARI (ASSAM)

ORDER

Shri Krishna Haloi, Asst. Teacher of Uttar Kamrup ME

Madrasa School, appointed under “plan” head of account is

hereby converted to “non plan” post vide DEE’s order Memo No.

EAA/75/96 dtd. 17.9.08 vide Sri Durgeswar Sarma A/T, Kawali

ME School retired.

The salary expenditure will be debitable under the Non Plan

Head of accounts.

Sd/- A. Choudhury,Dist. Elementary Education Officer,

Nalbari,Memo No. DEEO/Nal/Convert/28/5127-33, dated 17/8/2000”

17. A bare reading of the order, dated 17.08.2000, aforementioned

clearly shows that the order had been made without the concurrence

of the Department of Finance, Government of Assam, which,

admittedly, could not have been done. As already mentioned above,

there was no question of conversion of a ‘plan’ post into a ‘non-plan’

post, because such conversion would mean creation of a sanctioned

‘non-plan’ post. As there was no creation of any sanctioned post

against ‘plan’ post, the question of conversion of ‘plan’ post into a ‘non-

plan’ post did not arise at all. It is on the basis of such ex facie illegal

order of conversion, dated 17.08.2000, that the petitioner’s

appointment was confirmed in the said post by order dated

31.12.2008, which was issued by the District Elementary Education

Officer, Baska. This order read as under:

“GOVT. OF ASSAM OFFICE OF THE DISTRICT ELEMENTARY EDUCATION OFFICER, BASKA

ORDER

On the strength of order vide Memo No…./17/83-pt/76

dated 18.12.1997, Secretary of Edn. Department to the Govt. of

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Assam..vide of Sri Krisna Haloi, A/T of Uttar Kamrup M.E.

Madrassa, Naoshali, under Baska Block is hereby confirmed his

service as he is holding the post with effect from 01.12.98.

Sd/- illegibleDistrict Elementary Education officer,

Baska”

18. The order, dated 31.12.2008, similar as the order, dated

17.08.2000, aforementioned, shows that the order, dated 31.12.2008,

had no concurrence of the Department of Finance, Government of

Assam. Thus, the regular appointment of the writ petitioner-

respondent was, admittedly, without approval of the State Level

Empowered Committee and without concurrence of the Department of

Finance, Government of Assam. This apart, as the appointment was

not against any sanctioned ‘plan’ post or against any regularly

sanctioned post, the appointment could not have continued beyond

the scheme, which has been referred to as OBB.

19. Even if, therefore, one assumes, for a moment, that the writ

petitioner-respondent’s appointment had been preceded by an

advertisement, the fact of the matter remains that the writ petitioner-

respondent’s appointment, having preceded by an advertisement, was

against a ‘plan’ post, which was to continue till 28.02.1999 and,

thereafter, the petitioner-respondent was required to be adjusted/

absorbed in the existing vacancy. However, the petitioner-respondent

was, admittedly, not absorbed/adjusted against any existing vacancy.

What was done was mere issuance of an order of conversion of his

‘plan’ post into a ‘non-plan’ post without any concurrence from the

Department of Finance, Government of Assam, though a regular

sanctioned post could not have been created without the concurrence

of the Finance Department.

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20. When asked by this Court as to how the petitioner-respondent’s

‘plan’ post came to be converted into a ‘non-plan’ post without

concurrence of the Department of Finance, Government of Assam,

nothing could be submitted on behalf of the writ petitioner-

respondent. The learned Single Judge, while allowing the writ petition,

appears to have omitted to note this glaringly noticeable aspect of the

writ petitioner’s case.

21. From a reading of the order, dated 28.07.2011, whereby the

writ petition was allowed, it is clear that the learned Single Judge had

noticed that the writ petitioner’s appointment was under Operation

Black Board, but the error was committed by the learned Single Judge

by treating the appointment of the writ petitioner as a regular

appointment against a sanctioned post and thereby not noticing the

fact that the writ petitioner’s appointment was inherently temporary in

nature, dependent upon the scheme, which had been floated by the

Central Government under a Centrally Sponsored Scheme known as

Operation Black Board (OBB). Mere receipt of regular salary by the

petitioner, as an Assistant Teacher, cannot make his order of

appointment legal if the same was, otherwise, illegal as in the case at

hand. The submissions of Ms. Bordoloi, learned counsel for

respondent Nos. 2 and 3 in the writ petition, that since the

appointment of the writ petitioner was illegal, all subsequent orders,

such as, order for payment of salary to the writ petitioner, order

confirming his service, etc., are non est in law, had substantial force,

but were not appropriately appreciated by the learned Single Judge.

The observations made, and the law laid down, in Mohd. Abdul Kadir

and another vs. Director General of Police, Assam and others,

reported in (2009) 6 SCC 611, are aptly applicable to the facts of the

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present case. The relevant observations made, in Mohd. Abdul Kadir

(supra), read as under:

“13. The fact that the appellants were employed under the PIF

Additional Scheme is not disputed. The duration of the PIF

Additional Scheme under which they are employed was initially

two years, to be reviewed for continuation along with the original

PIF Scheme. The said Scheme is being extended from time to time

and is being continued. If the temporary or ad hoc engagement or

appointment is in connection with a particular project or a specific

scheme, the ad hoc or temporary service of the persons employed

under the project or scheme would come to an end, on

completion/closure/cessation of the project or the scheme.

14. The fact that the Scheme had been in operation for some

decades or that the employee concerned has continued on ad hoc

basis for one or two decades would not entitle the employee to

seek permanency or regularisation. Even if any posts are

sanctioned with reference to the Scheme, such sanction is of ad

hoc or temporary posts coterminous with the Scheme and not of

permanent posts.

15. On completion of the project or discontinuance of the scheme,

those who were engaged with reference to or in connection with

such project or scheme cannot claim any right to continue in

service, nor seek regularisation in some other project or service.

[See Bhagwan Dass v. State of Haryana, Delhi Development

Horticulture Employees' Union v. Delhi Admn., Hindustan Steel

Works Construction Ltd. v. Employees' Union, U.P. Land

Development Corpn. v. Amar Singh, Madhyamik Shiksha

Parishad, U.P. v. Anil Kumar Mishra, State of Karnataka v.

Umadevi (3), Indian Council of Medical Research v. K.

Rajyalakshmi and Lal Mohammad v. Indian Railway Construction

Co. Ltd.] In view of this settled position, the appellants will not be

entitled to regularisation.”

22. From the above observations, made in Mohd. Abdul Kadir

(supra), what becomes clear is the fact that, when an appointment is

made under a scheme, which is temporary in nature, continuation of

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the scheme for decades would not change the nature of appointment

and would not entitle a person to seek regularization in service. In the

case at hand, if the writ petitioner-respondent was to be continued in

service, then, he ought to have been appointed against a regular

sanctioned ‘non-plan’ post. This apart, even such an appointment

would have required fulfillment of the conditions of recruitment to the

post of Assistant Teacher, which has, admittedly, not been done in the

present case.

23. While considering the impugned judgment, we notice that the

learned Single Judge has observed, in the order, dated 28.07.2011,

that the writ petitioner’s appointment was against a substantive

vacancy and against regular pay scale. In fact, the learned Single

Judge has mentioned, in the judgment under appeal, that, initially,

the appointment of the writ petitioner was against a ‘plan’ post, but

the same was brought under ‘non-plan’ post by order, dated

17.08.2000. We notice that the learned Single Judge did not make

enquiry as to how the ‘plan’ post came to be converted into a ‘non-

plan’ post. Even when asked in the appeal at hand, the writ

petitioner-respondent had no answer. This, in itself, shows that the

‘plan’ post could not have been converted into a ‘non-plan’ post in the

manner as has been done in the present case.

24. Yet another reason, assigned by the learned Single Judge, is

that the writ petitioner had been in continuous service for the last

10 (ten) years. We hold, in this regard, that the length of period of an

illegal appointment cannot clothe the appointment with legality and

when the appointment of the writ petitioner had been against a ‘plan’

post and the same was illegally converted into a ‘non-plan’ post, the

fact that he had continued in service for 10 years would be of no

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consequence at all. (See Mohd. Abdul Kadir and another vs.

Director General of Police, Assam and others, reported in (2009) 6

SCC 611)

25. In support of the appellant’s case that as the order of

termination was not preceded by any notice to show cause, the

termination was illegal, Mrs. Saikia, learned counsel, has relied upon a

number of judgments, namely, Harbhajan Singh and others vs.

Nawanshahar Central Coop. Bank, reported in (2004) 10 SCC 606,

Aswani Kumar and others vs. State of Haryana and others,

reported in (2005) 12 SCC 428, University of Bihar and others vs.

Kamal Deo Thakur and others, reported in (2005) 9 SCC 278,

Mohd. Yunus Khan vs. State of Uttar Pradesh and others, reported

in (2010) 10 SCC 539, and Satwati Deswal vs. State of Haryana and

others, reported in (2010) 1 SCC 126.

26. While considering the decisions, which have been relied upon by

Mrs. Saikia, learned counsel, it needs to be noted that all the cases,

relied upon by Mrs. Saikia, are cases relating to misconduct. A

misconduct is required to be proved by a regular enquiry and the

enquiry can be held only upon serving charge-sheet on the employee

concerned provided that the employee denies the charge. As no

enquiry had been held in the cases relied upon by Mrs. Sailia, learned

counsel, the principle of natural justice was, obviously, held to have

been violated, when the employee concerned had denied the charge

and pleaded innocence and, on this ground, the orders of termination,

in the said cases, were set aside. The present one is not a case of

misconduct; rather, the present one is a case of appointment of a

person, which is per se illegal and when questioned, the writ

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petitioner-respondent could not justify the conversion of the post from

‘plan’ post to a ‘non-plan’ post.

27. In the circumstances, as indicated above, we find no force in the

contention of Mrs. Saikia that the order of termination was bad in law,

because no notice to show case was given to the writ petitioner-

respondent. The absence of notice would have become material, had

the petitioner been able to tell this Court, when questioned, as to what

he would have said as regards the conversion of his ‘plan’ post into a

‘non-plan’ post and, that too, without the concurrence of the

Department of Finance of the State Government concerned. On this

aspect of the appeal, our observations, made in paragraph 6 of this

judgment, are also of great relevance.

28. What is, now, required to be noted is that the writ petitioner-

respondent’s appointment, by way of conversion of a ‘plan’ post to a

‘non-plan’ post, was illegal and since such conversion was ex facie

illegal, it did not bind the Government to maintain the order of

appointment of the writ petitioner-respondent.

29. One of the specific grounds of the termination of the writ

petitioner-respondent’s appointment was that the writ petitioner’s

appointment was without issuance of any advertisement by the

authority concerned. We have minutely perused the entire writ

petition and we do not find that the writ petitioner-respondent has

asserted in his writ petition, even mildly, that his appointment was

made following any advertisement. Even when questioned in this

appeal, nothing could be shown to have been pleaded or placed on

record indicating that his appointment, under the Centrally Sponsored

Scheme, commonly known as Operation Black Board, was pursuant to

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any advertisement. The writ petitioner-respondent was, thus,

appointed by adopting a pick and choose method. Such an

appointment is clearly against the fundamental guarantees of equality

of employment under Article 14 and 16 of the Constitution of India,

which need to be scrupulously followed inasmuch as these two Articles

make it clear that no public employment shall be made without giving

all eligible candidates to have an opportunity to offer themselves for

selection and appointment. The reliance, placed by Mr. Das, learned

counsel, appearing on behalf of the Bodoland Territorial Council, on

the case of Government of Andhra Pradesh and others versus K.

Brahmanandam and othrs, reported in (2008) 5 SCC 241, is not

wholly incorrect. Mr. Das is also correct in referring to the case of

State of Bihar and others versus Kameshwar Prasad Singh and

another, reported in (2000) 9 SCC 94.

30. Though it has been submitted by Mrs. Saikia that similar

appointments had been made and have not been interfered with by the

Court, suffice it to point out that the concept of equality, guaranteed

by Article 14, is a positive concept and it cannot be enforced in a

negative manner. When any authority is shown to have committed

any illegality or irregularity in favour of any individual or group of

individuals, others cannot claim the same illegality or irregularity to be

extended to them on the ground of denial of similar treatment. The

mere fact, therefore, that in some cases, the Government has not yet

interfered with the order of appointment of the same nature, as is the

nature of appointment of the present appellant, can be of no avail to

the writ petitioner-respondent. Reference may be made, in this regard,

as has been done rightly by Mr. Das, learned counsel, to the case of

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State of Bihar versus Upendra Narayan Singh and others, reported

in (2009) 5 SCC 65 (See paragraph 33 to 38, 43, 44).

31. It may be pointed out here that, in State of Orissa and another

versus Mamata Mohanty, reported in (2011) 3 SCC 436, it has been

clearly held that once a Court comes to the conclusion that a wrong

order has been passed, it becomes the solemn duty of the

Court to rectify the wrong rather than perpetuating the same. See also

State of Manipur and others versus Y. Token Singh and others,

reported in (2007) 5 SCC 65.

32. In short, the mere fact that an authority has passed a particular

order in the case of another person, similarly situated, cannot be a

ground for issuing a writ in favour of the petitioner on the plea of

discrimination if the order, passed in favour of the other person, is

found to be contrary to law or not warranted in the facts and

circumstances of the case. Noticing that the High Courts, in exercise of

their writ jurisdiction, have been passing orders to remove

discrimination and thereby asking the authorities concerned to repeat

the illegality, the Supreme Court has expressed its anxiety on such

approach and has laid down the position of law, in Chandigarh

Administration & Anr. vs. Jagjit Singh and Anr., reported in (1995)

1 SCC 745, in the following words:

“8. We are of the opinion that the basis or the principle, if it can be

called one, on which the writ petition has been allowed by the

High Court is unsustainable in law and indefensible in principle.

Since we have come across many such instances, we think it

necessary to deal with such pleas at a little length. Generally

speaking, the mere fact that the respondent authority has

passed a particular order in case of another person

similarly situated can never be the ground for issuing a

writ in favour of the petitioner on the plea of

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discrimination. The order in favour of the other person

might be allowed and valid or it might not be. That has to

be investigated first before it can be directed to be followed

in the case of the petitioner. If the order in favour of the

other person is found to be contrary to law or not

warranted in the facts and circumstances of his case, it is

obvious that such illegal or unwarranted order cannot be

made the basis of issuing a writ compelling the respondent

authority to repeat the illegality or to pass another

unwarranted order. The extraordinary and discretionary

power of the High Court cannot be exercised for such a

purpose. Merely because the respondent authority has

passed one illegal/unwarranted order, it does not entitle

the High Court to compel the authority to repeat the

illegality over again and again. The illegal/unwarranted

action must be corrected, if it can be done according to law-

indeed, wherever, it is possible, the Court should direct the

appropriate authority to correct such wrong orders in accordance

with law – but even if it cannot be corrected, it is difficult to see

how it can be made a basis for its repetition. By refusing to direct

the respondent authority to repeat the illegality, the Court is not

condoning the earlier illegal act/order nor can such illegal order

constitute the basis for a legitimate complaint of discrimination.

Giving effect to such please would be prejudicial to the interests of

law and will do incalculable mischief to public interest. It will be a

negation of law and the rule of law. Of course, if in case the order

in favour of the other person is found to be a lawful and justified

one it can be followed and similar relief can be given to the

petitioner if it is found that the petitioners’ case is similar to the

other persons’ case. But then why examine another person’s case

in his absence rather tan examining the case of the petitioner who

is present before the Court and seeking the relief. Is it not more

appropriate and convenience to examine the entitlement of the

petitioner before the Court to the relief asked for in the facts and

circumstances of his case, than to enquire into the correctness of

the order made or action taken in another person’s case, which

other person is not before the case nor is his case. In our

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considered opinion, such a course – barring exceptional situations

– would neither be advisable nor desirable. In other words, the

High Court cannot ignore the law and the well-accepted

norms governing the writ jurisdiction and say that because

in one case a particular order has been passed or a

particular action has been taken, the same must be

repeated irrespective of the fact whether such an order or

action is contrary to law or otherwise. Each case must be

decided on its own merits, factual and illegal, in accordance with

relevant legal principles. The orders and actions of the authorities

cannot be equated to the judgments of the Supreme Court and

High Courts nor can they be elevated to the level of the

precedents, as understood in the judicial word. (What is the

position in the case of orders passed by authorities in exercise of

their quasi-judicial power, we express no opinion. That can be

dealt with when a proper case arises”. (Emphasis is added)

33. Because of what have been discussed and pointed out above, we

find ourselves constrained to interfere with the impugned order, dated

28.07.2011, whereby the writ petition was allowed. This writ appeal,

therefore, succeeds and the impugned order, dated 28.07.2011, is

hereby set aside.

34. No order as to costs.

JUDGE JUDGE

rk-njdutt22112

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