Smt. Meena v. State of Uttarakhand & Ors.

igys Hkh vki dk ekxZ n’kZu fd ; k x; k Fkk l s v i us mRrj nkf ; Roksa dks fd foHkkxk/ ; {k dh gSf l ; r igpkus vkSj m l dk l gh i z dkj fuoZgu djsaA b l ekeys esa Lor% gh Li"V gS fd i z ’uxr voS/k fu; qfDr ; ka vLFkk ; h ugha gS cfYd voS/k gSA vr% vki dk l q>ko fd mRrj k[ kaM l ekfIr½ fu ; ekoyh&2003 vLFkk ; h ds vUrxZr i z rhr foHkkx esa t kdj fopkj foe’kZ ugha gksrk gSA vr% U ; k ; djkoasaA b l l anfHkZr djusa dk dksbZ vkSfpR ; i z dj. k esa 'kk l u Lr j i j fu; qfDr Js .hk prqFkZ D; ksafd vf/kdkjh 'kk l u ugha gSA l ekIr dj fn; k t k ; ] i zFker ; % mfpr fuf’p; kRed dk; Zokgh l jdkjh l sod ¼ l sok , d l Irkg dfeZ; ksa gS Hkonh ;] g0&v i Buh ;@12&7&07 ¼fo t sUnz i ky½ i zeq [ k l fpo Mk0 i w t k Hkkj} k t funs'kd] vk; qosZfnd , oa ; wukuh l sok ; as mRrj k[ kaM] nsgjknwuA Learned counsel for the petitioners drew my attention to another letter written by the Director, Ayurvedic and Unani Services, Dehradun, Uttarakhand on 20.08.2007 in which the Director Ayurvedic and Unani Services, Dehradun, Uttarakhand asked all the District Ayurvedic and Unani Officers of the State as to why the services of the absorbed/adjusted sewak/sweepers were terminated whereas, the District Ayurvedic Unani Officers were asked to terminate illegal appointments only.

By this letter the Director Ayurvedic and Unani Services, Dehradun, Uttarakhand informed all the District Ayurvedic and Unani Officers that they are appointing authority of class-IV 5 employees and directed them to take necessary action and inform the Directorate at once. Letter dated 20.08.2007 is being quoted below:- i zs"kd l sok esa funs’kd vk; qosZfnd , oa ; wukuh l sok , a mRrj k[ kaM l eLr vf/kdkjh mRrj k [ kaM- f t yk vk; qosZfnd , oa ; wukuh l a [ ; k%&5988@ t h&107@2007&08@fnukad%&20 2007 fo"k ;%& voS/k fu; qfDr ds l aca/k esaA vxLr egksn ; mi; ZDr fo"k ; d fuosnu gS }kjk fnukad 'kqU ; fu"dkf l r prqFkZ Js .kh l a?k"kZ l fefr vk; qosZfnd , oa ; wukuh i= foHkkx mRrj k[ kaM us v i us 'kk l u }kjk l e;& l e; i j l aKku esa yk; k x; k gS fd in f t uesa 'kk l u }k jk prqFkZ Js .kh deZpkfj ; ksa ds Lohd` r funsZf’kr fd ; k x; k gS fd prqFkZ Js .kh deZpkfj ; ksa ds i nksa l sod@LoPNd dks foHkkx esa i woZ l s dk; Z jr va ’kdkfyd l s vFkok l jIy l dkfeZdks l s l q l axr fu; ekoyh ds i zkfo/kku ds vU rxZr Hkjs t k; sxsa ds dze esa l ek; ksf t r dkfeZdksa l s l q l axr fu; ekoyh ds i zkfo/kku ds vUrxZr Hkjs t k ; sxsa ds dze esa l ek ;fks t r dkfeZdks dh l sokvksa dks Hkh l ekIr dj fn ; k x; k gSA t cfd vki dks ek= voS/k fu; qfDr ; ksa dks l ekIr djus ds funsZ’k i znku fd ; s x; s FksA fQj vki ds }kjk mDr fu; eksa ds vUrxZr fu; qDr dkfeZdks dks l sok l s fd l vk/kkj i j i `Fkd dj fn; k x; k gSA pwafd prqFkZ Ja s .kh deZpkfj ; ksa ds fu; q fDr vf/kdkjh vki gS vr% vki dksa funsZf’kr fd ; k t krk gS fd 'kk l ukns’kks ds vUrxZr l q l axr fu; ekoyh ds i zkfo/kku ds vUrxZr Hkjs x; s i nksa ds l EcU/k esa v i us Lr j l s rRdky vko’ ; d g,q voxr djkuk l qfuf’pr djsaA dk ; Zokgh djr s funs’kky ; Hkonh ; ¼Mk0 i w t k Hkkj} k t ½ funs’kd Learned counsel for the petitioners argued that when in pursuance of letter of the Principal Secretary, Medical Health the Director Ayurvedic and Unani issued a direction to all the District Ayurvedic and Unani Officers for cancelling the illegal appointment of Class-IV employee, the District Ayurvedic and Unani Officer virtually surrendered their discretion and issued termination orders in a 6 mechanical manner.

According to learned counsel for the petitioners, the District Ayurvedic and Unani Officer did not apply his mind in the matter and assumed that all appointment of the absorption/adjustment were to be terminated in pursuance of the letter dated 23.07.2007 written by the Director Ayurvedic and Unani, Dehradun, Uttarakhand. They further argued that in fact order of termination was passed by the District Ayurvedic and Unani Officers in compelling circumstances without application of mind. Learned counsel for the petitioners further submitted that after the adjustment/absorption the services of the petitioners could not be terminated without providing them opportunity of hearing as after absorption/adjustment the petitioners gained substantive right. Learned counsel for the petitioners also argued that in fact the Principal Secretary as well as the Director, Ayurvedic and Unani had no jurisdiction to issue any direction to the District Ayurvedic and Unani Officers for cancelling the appointment of the petitioners as they were not the appointing authority and District Ayurvedic and Unani Officers being the appointing authority, alone were empowered to do so, that too, if the circumstances so required.

Learned Standing Counsel appearing for the respondents submitted the petitioners were not absorbed/adjusted after adopting due selection process and when it was found that the absorption/adjustment was made illegally, their services were terminated. On the question of opportunity of hearing, learned counsel respondents argued that since the appointment of the petitioners were illegal from inception, no show cause notice was required. 7 Learned counsel for the respondents further submitted that the preliminary inquiry committee was constituted which found the appointment as illegal but this fact was denied by the petitioners in their rejoinder arguments and they submitted that at no point of time there was any inquiry nor the petitioners were ever called upon to participate in the inquiry, hence the alleged inquiry is a sham one and cannot be made basis for termination of petitioners’ services.

According to learned counsel for the petitioners the said inquiry was made in respect of the officers who were allegedly involved in the process for the absorption of the petitioners and other candidates and preliminary enquiry cannot be made the basis for terminating the services of the petitioner, as the preliminary enquiry, at the best, is for prima-facie satisfaction only. After hearing learned counsel for the parties and after going through the entire material available on record of this petition as well as the other connected writ petitions, this Court finds that the absorption/adjustment/regularization of the petitioners against the vacant posts was made on the basis of due recommendations of the selection committee. This Court is satisfied with the argument of learned counsel for the petitioners that the termination order was passed by the District Ayurvedic and Unani Officers in mechanical manner and by surrendering their discretion by treating the letters of the Principal Secretary, Medical Health and Director, Ayurvedic and Unani as binding direction and by assuming that the same were issued for cancelling the appointment of the petitioners also.