Full Judgment Text
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CASE NO.:
Appeal (civil) 1872 of 2007
PETITIONER:
Divisional Forests Officer and Ors.
RESPONDENT:
M. Ramalinga Reddy
DATE OF JUDGMENT: 10/04/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
JUDGMENT
S.B. SINHA, J.
1. Leave granted.
2. Five vacancies of Foresters were notified on or about 22.11.1978 to the
District Employment Exchange, Nellore. Pursuant thereto names were
sponsored and 49 candidates registered upto 6.09.1969 were considered for
pre-submission interview. However, a request was made to the District
Employment Exchange, Nellore on 22.12.1978 to sponsor names of some more
candidates for the above posts. 60 candidates registered upto 11.02.1970
were initially considered and after submission interview a list of 18
candidates was sent to the employer on 9.01.1979. In the said list, the
name of the respondent was also included although he got himself registered
with the Employment Exchange only in the year 1976 having registration No.
2412/76. However, against his name, the registration number was stated to
be 6899/69. Allegedly, he got his name enlisted in the list of candidates
in connivance with one Mr. Harnadha Reddy, the then Junior Assistant of
District Employment Exchange, Nellore.
3. Respondent was selected having been placed in Sl. No. 3 in the merit
list. Alleged fraud played by the respondent together with the
aforementioned Junior Assistant, District Employment Exchange was brought
to the notice of Appellant No. 1 on 24.04.1979. As a proposal was made
thereby to delete his name from the list of candidates sponsored by the
District Employment Exchange on 9.01.1979 for the post of Foresters, no
offer of appointment was issued in his favour.
4. Respondent, thereafter, filed an original application before the Andhra
Pradesh Administrative Tribunal. By an order dated 1.04.1981, a direction
was made to conduct an enquiry on the said application. During pendency of
the said original application itself, he filed a writ petition wherein an
interim order was passed to consider his case for appointment. On or about
23.04.1982 pursuant to or in furthermore of the said interim order, an
offer of appointment was issued to the respondent. The said writ petition,
however, was dismissed by the High Court in terms of an order dated
24.12.1992 opining that it had no jurisdiction in that behalf. The District
Employment Officer, Nellore sent a report to Appellant No. 1 holding the
respondent guilty of misconduct. He thereafter filed an original
application before the Andhra Pradesh Administrative Tribunal which was
marked as O.A. No. 5409 of 1994 inter alia questioning the order passed by
the District Employment Officer contained in letter dated 24.08.1993 as
arbitrary and illegal and directing Appellant No. 1 to allow all service
benefits to him as a Forester with effect from the date of his selection.
Indisputably, during pendency of O.A. No. 5409 of 1994, a notice to show
cause was issued as a why his name should not be removed from the post of
Forester. The Tribunal, in terms of its order dated 5.05.1999, dismissed
the said original application directing the respondent herein to submit his
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explanation to the said show cause notice. Aggrieved by and dissatisfied
therewith, he filed a writ petition before the Andhra Pradesh High Court
and by reason of the impugned judgment dated 25.4.2005, the said writ
petition has been allowed directing:
"9. Accordingly, we set aside the order of the Tribunal and also the report
of the 3rd respondent - District Employment Officer, Nellore dated
24.8.1993 and consequently the show cause notice termination. Petitioner
shall be continued in service, as if he has been in regular appointment
from 23.4.1982 and he shall be given benefit of pay as revised from time to
time and he shall also be given notional increments up to the date of
filing the present writ petition i.e. 19.7.1999 and thereafter fiscal
monetary benefits shall be released.
10. The arrears arising out of the pay fixation shall be paid within a
period of three months from the date of receipt of a copy of this order."
5. Mr. H. S. Gururaja Rao, learned senior counsel appearing on behalf of
the appellants, would submit that the High Court committed a manifest error
in passing the impugned judgment insofar as it failed to take into
consideration that ordinarily an original application was not maintainable
against a show cause notice.
6. Mr. L. Nageswara Rao, learned senior counsel appearing on behalf of the
respondent, however, would submit that as the respondent had been appointed
pursuant to an order passed by the High Court as far back as in 1982, this
Court should not interfere with the impugned judgment.
7. The Parliament enacted the Employment Exchanges (Compulsory Notification
of Vacancies) Act, 1959 to ensure equal opportunity for the unemployed
people. Although there exists some controversy as to whether notification
of services to an Employment Exchange is imperative in character or not,
indisputably herein a requisition was made to the Employment Exchange.
Names were sponsored by it keeping in view the seniority of the candidates
with reference to their registration in the Employment Exchange. Respondent
is said to have been registered only in the year 1976. His name, therefore,
ordinarily could not have been sponsored by the Employment Exchange at the
relevant point of time. Allegedly, a Junior Assistant in District
Employment Exchange, Nellore had connived with the respondent in the matter
of sponsoring of his name in the year 1979 although he was not entitled
therefore. The Employment Exchange, therefore, sought to withdraw the
sponsorship of the respondent. In absence of his name having been legally
sponsored, the candidature of the respondent could not have been considered
for appointment as a Forester. At least such a view appears to have been
taken by the District Employment Officer, Nellore. It, as noticed
hereinbefore, sent a report in that behalf.
8. Appellant No. 1 herein intended to give effect to the said report. For
the said purpose, it had issued a show cause notice.
9. Whether despite the purported report of the District Employment Officer,
Nellore, the name of the respondent should be struck off from the rolls or
not in a matter which would fall for consideration before the appropriate
authority. It is not a case where the notice was issued wholly without
jurisdiction. It is also not a case where the said notice was otherwise
illegal.
10. Respondent claims his right to continue in service only because he was
selected. A selected candidate, it is now well settled, has no legal right
to be appointed automatically.
11. The High Court in passing the impugned judgment, with respect, did not
pose unto itself a right question. Pursuant to or in furtherance of the
said show cause notice, the respondent was required to show cause as to why
his services should not be terminated. The observations of the High Court,
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therefore, to the effect that he having been appointed on 23.4.1982 on the
minimum scale of pay, cannot be permitted to continue to draw the same
scale of pay as applicable in 1978 without any revisional increments, was
wholly irrelevant.
12. It is also not a case where an order has been passed without
application of mind. It is also not a case where the appellant had made up
its mind and the notice had been issued only by way of a formality. [See
M/s. Siemens Ltd. v. State of Maharashtra, (2006) 13 SCALE 297 The
Tribunal, as noticed hereinbefore, directed the respondent to show his
cause. Ordinarily, no writ petition would be maintainable at that stage.
13. In Management of Express Newspapers (Private) Ltd., Madras v. The
Workers and Ors., AIR (1963) SC 569, it was opined:
"15. The High Court undoubtedly has jurisdiction to ask the Industrial
Tribunal to stay its hands and to embark upon the preliminary enquiry
itself. The jurisdiction of the High Court to adopt this course cannot be,
and is indeed not disputed. But would it be proper for the High Court to
adopt such a course unless the ends of Justice seem to make is necessary to
do so? Normally, the questions of fact, though they may be jurisdictional
facts the decision of which depends upon the appreciation of evidence,
should be left to be tied by the Special Tribunals constituted for that
purpose. If and after the Special Tribunals try the preliminary issue in
respect of such jurisdictional facts, it would be, open to the aggrieved
party to take that matter before the High Court by a writ petition and ask
for an appropriate writ. Speaking generally, it would not be proper or
appropriate that the initial jurisdiction of the Special Tribunal to deal
with these jurisdictional facts should be circumvented and the decision of
such a preliminary issue brought before a High Court in its writ
jurisdiction.
We wish to point out that in making these observations, we do not propose
to lay down any fixed or inflexible Rule; whether or not even the
preliminary facts should be tried by a High Court in a writ petition, must
naturally depend upon the circumstances of each case and upon the nature of
the preliminary issue raised between the parties. Having regard to the
circumstances of the present dispute, we think the court of appeal was
right in taking the view that the preliminary issue should more
appropriately be dealt with by the Tribunal. The appeal court has made it
clear that any party who feels aggrieved by the finding of the Tribunal on
this preliminary issue may move the high Court in accordance with law.
Therefore, we are not prepared to accept Mr. Sastris argument that the
Appeal court was wrong in reversing the conclusion of the trial Judge
insofar as the trial Judge proceeded to deal with the question as to
whether the action of the appellant was a closure or a lockout."
14. In State of Uttar Pradesh v. Brahm Datt Sharma and Anr., AIR (1987) SC
943 : [1987] 2 SCC 179, this Court held:
"9. The High Court was not justified in quashing the show cause notice.
When a show cause notice is issued to a government servant under a
statutory provision calling upon him to show cause, ordinarily the
government servant must place his case before the authority concerned by
showing cause and the courts should be reluctant to interfere with the
notice at that stage unless the notice is shown to have been issued
probably without any authority of law. The purpose of issuing show cause
notice is to afford opportunity of hearing to the government servant and
once cause is shown it is open to the Government to consider the matter in
the light of the facts and submissions placed by the government servant and
only thereafter a final decision in the matter could be taken. Interference
by the court before that stage would be premature, the High Court in our
opinion ought not have interfered with the show cause notice."
15. This Court in Special Director and Anr. v. Mohd. Ghulam Ghouse and
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Anr., [2004] 3 SCC 440 stated the law, thus:
"5. This Court in a large number of cases has deprecated the practice of
the High Courts entertaining writ petitions questioning legality of the
show-cause notices stalling enquiries as proposed and retarding
investigative process to find actual facts with the participation and in
the presence of the parties. Unless the High Court is satisfied that the
show-cause notice was totally non est in the eye of the law for absolute
want of jurisdiction of the authority to even investigate into facts, writ
petitions should not been entertained for the mere asking and a matter of
route, and the writ petitioner should invariably be directed to respond to
the show-cause notice and take all stands highlighted in the writ petition.
Whether the show-cause notice was founded on any legal premises, is a
jurisdictional issue which can even by urged by the recipient of the notice
and such issues also can be adjudicated by the authority issuing the very
notice initially, before the aggrieved could approach the court. Further,
when the court passes an interim order it should be careful to see that the
statutory functionaries specially and specifically constituted for the
purpose and are denuded of powers and authority to initially decide the
matter and ensure that ultimate relief which may or may not be finally
granted in the writ petition is not accorded to the writ petitioner even at
the threshold by the interim protection granted."
16. This aspect of the matter has recently been considered by this Court in
Union of India and Anr. v. Kunisetty Satyanarayana, (2006) 12 SCALE 262.
17. Two other aspects of the matter cannot also be lost sight of.
Respondent was not appointed pursuant to selection made in his favour. No
offer of appointment was issued by the appellant. He was appointed pursuant
to an interim order passed by High Court. The High Court ordinarily should
not have done so.
18. In Metro Marins and Anr. v. Bonus Watch Co. (P) Ltd. and Ors., [2004] 7
SCC 478, this Court held:
"9. Having considered the arguments of the learned counsel for the parties
and having perused the documents produced, we are satisfied that he
impugned order of the appellate court cannot be sustained either on facts
or in law. As noticed by this Court, in the case of Dorab Cawasji Warden v.
Coomi Sorab Warden, it has held that an interim mandatory injunction can be
granted only in exceptional cases coming within the exceptions noticed in
the said judgment. In our opinion, the case of the respondent herein does
not come any one of those exceptions and even on facts it is not such a
case which calls for the issuance of an interim mandatory injunction
directing the possession being handed over to the respondent. As observed
by the learned Single Judge the issue whether the plaintiff is entitled to
possession is yet to be decided in the trial court and granting of any
interim order directing handing over of possession would only mean
decreeing the suit even before trial. Once the possession of the appellant
either directly or through his agent (caretaker) is admitted then the fact
that the appellant is not using the said property for commercial purpose or
not using the same for any beneficial purpose or the appellant has to pay
huge amount by way of damages in the event of he losing the case or the
fact that the litigation between the parties is a luxury litigation are all
facts which are irrelevant for changing the status quo in regard to
possession during the pendency of the suit."
[See also Srikrishna and Ors. v. Aniruddha Singh and Ors., [2005] 12 SCC
389].
19. In any event, the writ petition having been dismissed, the interim
order also came to an end. It could have been directed to be continued.
Respondent did not, thus, have any legal right to continue in service after
dismissal of the writ petition by the High Court.
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20. It is furthermore doubtful as to whether an original application could
have been filed questioning the report of the District Employment Officer.
21. For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. Respondent may file his show
cause within two weeks from date whereupon the appellants may take an
appropriate decision in accordance with law. The Appeal is allowed.
However, in facts and circumstances of the case, there shall be no order as
to costs.