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Shyam Behari Goyal Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1888 of 1970
Judge
Reported in1975WLN(UC)88
AppellantShyam Behari Goyal
RespondentThe State of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredIn State of Orissa v. Dr.
Excerpt:
..... - the respondents have, further stated that this mistake was a bonafide error committed by the deputy director while issuing the order dated november 6, 1973 and it would become evident from the fact that orders relating to the appointment of other persons whose names appeared higher as well as lower to the four persons, including the petitioner, in the merit list clearly mentioned that such appointments would last till april 30, 1974 and, according to the respondents, no exception could have been intended to be made in this respect in the case of the petitioner and three othera, who were appointed by order ex. 1. in respect of the petitioner and three others, clearly a mistake was committed by the office of the deputy director of education, jodhpur, which can well be considered to..........years from the date of his joining the service along with three other persons, by the order of the deputy director of education, jodhpur dated november 6, 1973 (ex. i). the petitioner joined his post as a second grade teacher on november 14, 1973 and continued to perform his duties on the aforesaid post until the deputy director of education, jodhpur by his order dated april 28, 1974 suddenly terminated his services with effect from april 30, 1974 on the ground that the petitioner along with the other three persons, whose names were mentioned in that order, was temporarily employed upto april 30, 1974 only. the petitioner made a representation to the deputy director of education, jodhpur. but by a subsequent order dated may 6, 1974 the deputy director amended the initial order of.....
Judgment:

D.P. Gupta, J.

1. This is a petition under Article 226 of the Constitution of India by which the petitioner has challanged the orders of the Deputy Director of Education, Jodbpur terminating the services of the petitioner as a Second Grade Teacher with effect from April 30, 1974.

2. In brief the case of the petitioner is that he passed the M.Sc. Examination in Chemistry from the University of Rajasthan in the year 1973. in the First Division. On selection by the Departmental Selection Committee, die petitioner was appointed as a Second Grade Teacher, in the grade of Rs. 130-360, on probation for a period of two years from the date of his joining the service along with three other persons, by the order of the Deputy Director of Education, Jodhpur dated November 6, 1973 (Ex. I). The petitioner joined his post as a Second Grade teacher on November 14, 1973 and continued to perform his duties on the aforesaid post until the Deputy Director of Education, Jodhpur by his order dated April 28, 1974 suddenly terminated his services with effect from April 30, 1974 on the ground that the petitioner along with the other three persons, whose names were mentioned in that order, was temporarily employed upto April 30, 1974 only. The petitioner made a representation to the Deputy Director of Education, Jodhpur. But by a subsequent order dated May 6, 1974 the Deputy Director amended the initial order of appointment of the petitioner dated November 6, 1973 to the effect that the appointment of the petitioner and three others would ensure only for the session 1973-74 and that the said appointment would be effective only upto April 30, 1974. The petitioner, feeling aggrieved by the aforesaid orders of the Deputy Director of Education terminating his services with effect from April 30, 1974 and amending retrospectively the initial order of appointment of the petitioner, has filed the present writ petition.

3. The submission of the petitioner's learned Counsel is that the petitioner was inatraily appointed by the order Ex. 1 dated November 6, 1973 for a period of two years and his services could not have been terminated earlier, as he was fixed term empolyee. The second submission of the learned Counsel is that the Deputy Director was not empowered to amend the order of initial appointment of the petitioner, with retrospective effect by his order dated May 6, 1974 without giving a notice to the petitioner and without affording him an opportunity of hearing, as that order immensely affected the rights of the petitioner.

4. The respondents have submitted a return and their case is that while issuing the appointment order Ex. 1 dated November 6, 1973, relating to the petitioner and three other, the office of the Deputy Director used, by mistake, a wrong form relating to the appointment of trainded graduates, although the petitioner and three others were untrained Science graduates and because of the mistake in order Ex. 1 if was mentioned that the petitioner and three others were appointed on probation for a period of two years, while in accordence with the Standing Order No. 8 of 1973 untrained Science graduates could have been appointed only for that session. The respondents have, further stated that this mistake was a bonafide error committed by the Deputy Director while issuing the order dated November 6, 1973 and it would become evident from the fact that orders relating to the appointment of other persons whose names appeared higher as well as lower to the four persons, including the petitioner, in the merit list clearly mentioned that such appointments would last till April 30, 1974 and, according to the respondents, no exception could have been intended to be made in this respect in the case of the petitioner and three othera, who were appointed by order Ex. 1. It is further submitted that the mistake was realised when the petitioner made are presentation, after the order of termination of his services Ex. 2 dated April 28, 1974 was served upon him and thereafter the said mistake was rectified by issuing the order Ex. 3 dated May 5, 1974 amending the initial order of appointment of the petitioner dated November 6, 1973 and bringing it in consonance with the appointment orders of the other untrained Science teachers.

5. Mr. Calla, appearing for the petitioner, submitted that the respondents could not contend that the order Ex. 1 was passed by mistake, even if the said order was actually passed under a bonafidc error and relied upon State of Assam and Anr. v. Raghya Rajgopalachari 1972 SLR 44 in support of this contention.

6. On the other hand Mr. Purohit, learned Additional Government Advocate, argued that as a bonafide mistake was committed by the respondents, they were within their rights to correct the same as soon as it was discovered, and that if the mistake is not, allowed to be, corrected then the petitioner would, get unfair advantage over other persons, who were superior in merit to him, and whose names also appeared higher in the merit list.

7. I have considered the rival contentions and have also perused the relevant record of the office of the Deputy Director of Education, Jodhpur, There is no doubt that in accordance with the Standing Order No. 8 of 1973 issued by the Director of Primary and Secondary Education, Rajasthan, Bikaner on September 1, 1973 only trained graduates could have been appointed on the post of Second Grade teachers, except in the case of Science and in that case also untrained teachers could be appointed only for a period of one session. The aforesaid order further directed that if at the beginning of the next session, trained Science teachers were not available then the persons who were removed earlier could be re appointed in accordance with their position in the merit list. It also appeared from a parusal of the record of the office of the Deputy Director Education, Jodhpur placed before me, that Rameshwar Ram and Anand Raj, who secured 70 26% and 67 59% marks and whose names stood at Nos. 1 and 2 in the list of selected untrained Science graduates, arranged in order of merit were Appointed by the order dated September 27, 1973 as temporary Second, Grade teachers, and their appointment was made to last till April 30, 1974. The same of the pjtitioner Shyam Bihari appeared at No. 4 in the merit list and persons whose names appeared at Nos. 3 to 6 in the merit list, including the petitioner, were appointed by the order dated November 6, 1973 It appeared that the form meant for 'Science and Mathematics trained teachers' was employed while issuing the order of appointment of the aforesaid four persons, including the petitioner and although a correction was made in the beginning of the form, by amending 'untrained' instead of 'trained', yet the stipulation in that form that the appointment would be on probation for a period of two years was some how allowed to remain unchanged. It further appeared that the appointment order issued in respect of the next four candidates in the merit list also mentioned that their appointment would last upto April 30, 1974. Thus there is no doubt that while issuing the appointment order Ex. 1. in respect of the petitioner and three others, clearly a mistake was committed by the office of the Deputy Director of Education, Jodhpur, which can well be considered to be bonafide in the circumstances narrated above. I have also perused the order passed by the Deputy Director on the note sheet, relating to the appointment of the petitioner and three others, and there is no mention in the order that the petitioner and three other persons would be appointed on probation for a period of two years. Thus it appears to have been contemplated that the appointment order of these four persons including the petitioner, should be issued in the same manner as the appointment order of two persons whose names appeared above them in the merit list and should confirm to the pattern of the appointment order issued earlier to the persons superior in merit to the petitioner. Therefore the contention of the learned Additional Government Advocate that it the order Ex. 1 dated November 6, 1973 appointing the petitioner and three others on probation for a period of two years, was apparently erroneous and was issued under a bonafide mistake and that it was never contemplated that they should have been appointed for a longer term than the period of that session, appears to be veil founded.

8. The question which next arises is as to whether the respondents could correct the error which had crept into the appointment order of the. petitioner Ex. 1 in the manner they did. So far as the contention of the learned Counsel for the petitioner is concerned that the respondents could not correct the error which had inadvertently crept into the appointment order Ex. 1 I, may at once observe that such an apparent, mistake can always be allowed to be corrected. After all, the order of appointment of the petitioner was an executive act and if a bonafide error had crept into it, then the respondents were entitled to make the necessary correction as soon as the error was detected. I am, therefore, not inclined to accept the contention of the learned Counsel for the petitioner that the error committed by the Deputy Director of Education while issuing the order Ex. 1 could never be corrected howsoever bonafide it might be. The decision of their Lordships of the Supreme Court in State of Assam and Anr. v. Raghva Rajgopalachari 1972 SLR 44 is not applicable to facts of the present case. In that case the State never corrected its erroneous order but is was allowed to remain in force, yet it was argued on behalf of the State before the Supreme Court that there was an error in their order. Their Lordships of the Supreme Court, therefore, were pleased to observe that the State was not entitled to challenge its own order before the Court and that the respondents to a writ petition could not be allowed to attack its own order as a respondent. It the present case the situation is entirely different, inasmuch as the respondents have, on realising their mistake, issued the order Ex. 3 dated May 6, 1974 amending the earlier order dated November 6, 1973 (Ex. 1).

9. However, the question still remains as to whether the respondents, even in the case of a bonafide mistake, could amend its earlier order affecting the rights of the petitioner without giving him notice about their intention of making the requisite correction in the appointment order Ex. 1 and without affording the petitioner a resonable opportunity to have his say in the matter. As I have allearly observed above, the respondent were undoubtedly not precluded from making the necessary correction as soon as the mistake, which had crept in the order Ex. 1 was discovered but in my opinion, it was incum bent upon the respondents to give a notice to the petitioner of their intention to make the aforesaid correction and also to hear the petitioner in that matter before passing the order Ex 3. In State of Orissa v. Dr. (Miss) Binapani Dei and Ors. : (1967)IILLJ266SC their Lordships of the Supreme Court were pleased to observe.

An order by the State to the prejudice of person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. The deciding authority, it is true, is not in the position of Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice For that purpose the peron against whom an enquiry is held must be informed of the case he is called upon to meet and the evidence in support thereof The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of parsers invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitraty authority by the State or its officers, Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. It the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.

There is no doubt that the order in question is administrative in character, but it certain prejudicially affected the rights of the petitioner, inasmuch as by the order Ex. 1 the petitioner was appointed temporarily for a period of two years and by the amendment incorporated therein by the order Ex. 3, this duration of his temporary appointment was sought to be reduced to a period even less than six months. In these circumstances, it was essential for the respondents to follow the basic principles of natural justice and to inform the petitioner about their intention to effect the aforesaid alteration in the order of appointment Ex. 1 and to hear him before passing any order to his prejudice. As such the order Ex. 3 is illegal and void, having been passed in utter violation of the principles of natural justice.

10. As the petitioner was originally appointed by the order Ex. 1 dated November 6, 1973 for a period of two wears, the earlier termination of his services by the order Ex. 2 dated April 28, 1974 with effect from April 30, 1974 was clearly illegal, in the absence of a proper and lawful order amending the same and reducing the period of his temporary employment upto April 30, 1974.

11. In the result, the writ petition is allowed and the orders passed by the Deputy Director of Education, Jodhpur dated April 28, 1974 (Ex. 2) and May 6, 1974 (Ex. 3) are hereby quashed. However, the respondents would be entitled to make suitable correction in the original order of appointment of the petitioner (Ex. 1) after complying with the principles of natural justice, as indicated above. The parties are left to bear their own costs.


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