1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1636 OF 2012

UNION OF INDIA AND ANR. …..APPELLANT(S)

:Versus:

RAGHUWAR PAL SINGH …..RESPONDENT(S)

J U D G M E N T

A.M. Khanwilkar, J.

1. The central questions posed in this appeal are: (i) whether

the appointment of the respondent to the post of Veterinary

Compounder, made by the Director Incharge at the relevant point

of time without approval of the Competent Authority , was a

nullity or a mere irregularity, which could be glossed over by the

department to avert disruption of his services and; (ii) in any

case, whether his services could be disrupted without giving him

an opportunity of hearing.

2. Briefly stated, the respondent was appointed to the post of

Veterinary Compounder in the Department of Animal Husbandry

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and Dairying by one H.S. Rathore, the then Agriculture Officer,

Central Cattle Breeding Farms (CCBF) , Suratgarh, who was

purportedly authorised only to look after the current duties of the

post of Director. The appointment was made in November 1999

on a provisional and temporary basis , pursuant to the

advertisement published in the newspaper on 15.1 0.1999.

However, by an office order dated 29

th August, 2000 issued under

the signature of Dr. M.N. Haque , Director, the services of

respondent came to be terminated. The said order reads thus:

“Government of India

Ministry of Agriculture

Department of All & Dairying

……….Cattle Breeding Farm

SURATGARH – 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

Shri Raghuwar Pal Singh S/o Shri Himat Singh Shekhawat to the

post of Veterinary Compounder, made by the then Director

Incharge Shri H.S. Rathore, agriculture Officer, without

approval of the Competent Authority , vide this office order No.

14-62/99-CPS/1562 dated 24/30 November, 1999, is

CANCELLED with immediate effect. Accordingly, his service stands

terminated as per terms and conditions laid down in point v) & vi)

of the offer of appointment letter no.5-17/96-99/CPS/1308 dated

16/22 November, 1999.

(Dr. M.N. Haque)

DIRECTOR.”

(emphasis supplied)

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3. The respondent assailed the said order by filing Original

Application No.206 of 2000 before the Central Administrative

Tribunal, Jodhpur Bench at Jodhpur, inter alia, on the ground

that the appointment was made by the Board of Officers after

they had duly considered the matter and who were competent to

issue offer of appointment to the respondent. Further, if there

was any irregularity in the appointment process, that could have

been enquired into by the department , but without taking

recourse to any inquiry, the impugned termination order had

been issued. Such action was violative of Article 311 (2) of the

Constitution of India. According to the responden t, his

appointment was made after following all the formalities by the

department in a fair and transparent manner. He asserted that

the department was therefore, estopped from terminating his

services. Further, the impugned order is not a termination

simpliciter but would cause prejudice to the respondent. It is a

stigmatic order indicating that the appointment of the respondent

was illegal, for which reason also, principles of natural justice

ought to have been adhered to by the department.

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4. The appellants resisted the said Original Application, by

filing a detailed affidavit. According to the appellants, the

respondent had not approached the Court with clean hands. In

that, he has mentioned the numbers of the relevant documents,

which pertain to some other case and not his order of

appointment or termination. On merits, it was asserted by the

appellants that the appointment of the respondent to the post of

Veterinary Compounder was not as per the law. It was made by

the then Director Incharge H.S. Rathore, Agriculture Officer and

without approval of the competent authority. On the date of

issuing the appointment letter, Shri H.S. Rathore had no

authority to do so. It was asserted by the appellants that

pursuant to advertisement dated 1 5.10.1999, appointment

could be made only in conformity with the relevant Recruitment

Rules, as amended from time to time , titled „Central Cattle

Breeding Farm (Class III and IV Post) Recruitment Rules, 1969‟.

In terms of the said Rules, an interview was required to be

conducted by a Board comprising of three officers viz. Director of

the Farm, Senior-most Technical Officer and one Government

Officer of Central/State Government. However, the selection

process and interview in the present case were conducted by the

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Board unilaterally constituted by the said H.S. Rathore,

consisting of seven members including himself, being Director

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

State Farm (SFCI Ltd.) (Not a Central Govt. office)

3) Shri CS. Manohar, Asso. Professor Member Veterinary

College, Bikaner (whereas a Veterinary Officer is already

there in the office itself)

4) 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 a Central/State office)

6) Shri Baldev Singh, A griculture Asstt. Member CCBF,

Suratgarh (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, the respondent was the son of the younger brother-

in-law of H.S. Rathore, the Director Incharge and Chairman of

the Board. The Chairman of the Board had direct relation with

and interest in the appointment of the respondent. It is then

stated that as per the prescribed procedure, appointment is

required to be made after obtaining prior approval from the

competent authority i.e. Ministry of Agriculture, Department of

Animal Husbandry and Dairying, New Delhi. That procedure was,

admittedly, not adhered to before issuing the letter of

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appointment to the respondent. For all these reasons, the

appointment of the respondent as made by the then Director

Incharge H.S. Rathore, Agriculture Officer, was without any

authority of law. It was a fraudulent appointment. When the

same was noticed by the department, soon thereafter, the subject

office order dated 29.08.2000 came to be issued. It was stated

that the appointment of two other candidates to the post of

Junior Mechanic and Tractor Helper made by H.S. Rathore as

Director Incharge also came to be cancelled by the department by

issuing similar termination order. In addition, a departmental

action has been initiated against H.S. Rathore for committing

serious misconduct and abusing his official position during the

relevant period. The appellants pointed out that one Dr. B.S.

Singh was posted as Director CCBF, Suratgarh on ad hoc basis

and was ordered to function as Head of Office during his tenure

vide order dated 21.02.1995. No authorization was given to H.S.

Rathore to issue letter of appointment. He was merely holding

the post of Agriculture Officer. Considering the unilateral action

of H.S. Rathore, major penalty memorandum was issued to him

by the department on 22.06.2001 in particular with reference to

the appointments made by him to the post of

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Veterinary Compounder, Junior Mechanic, Tractor Helper and

milker and also on ad hoc basis to the post of LDC and UDC.

5. The other two affected candidates had also challenged the

termination order passed against them by way of Original

Application before the Central Administrative Tribunal, Jodhpur

Bench, Jodhpur. The Tribunal heard all the three O.As together

as the issues raised therein were similar.

6. The Tribunal, after analysing the relevant contentions of

both sides, opined that there was no infirmity in the termination

order passed against the concerned applicant including the

respondent herein. The Tribunal noted thus:

“11. It is not in dispute that till his ad hoc appointment as

Director, Regional Station for Forage Pro duction and

Demonstration, Suratgarh, Shri HS. Rathore, was only posted as

Agriculture Officer, CCBF, Suratgarh. This is apparent from the

order dated 22.12.99 (Arin.A/10 of OA 204/2000). It is also

admitted fact that 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 the post of Director, CCBF, Suratgarh. One Dr. B.S.

Singh, was earlier posted as officiating Director and declared Head

of office. After posting of Dr. Singh, no declaration was made in

favour of Shri Rathore for his continuation as Head of Office.

Applicants‟ contention is „that since Dr. Singh, never took charge of

the responsibilities of Director, CCBF, Suratgarh, Shri H.S.

Rathore, continued to function as Head of the Office. By order

dated 15.7.99 one Shri M.N. Haque, was posted as Director and

ordered to take over charge of the post of Director, CCBF,

Suratgarh, from Shri H.S. Rathore. This order was stayed by this

Tribunal vide order dated 10.8.99, passed in OA 204/99. As a

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consequence, Shri Rathore continued to look after the current

duties of the post of Director, CCBF, Suratgarh.

12. Now the question which arises for our consideration is

whether an officer looking after the current duties of a post,

could exercise the statutory power as vested in the regular

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 of an

appointment can exercise administrative or financial powers

vested in the full-fledged incumbent of the post but he cannot

exercise statutory powers whether those powers are derived

direct from an act of parliament or rules Regulations and By -

Law made under vari ous Articles of the constitutions (e.g.,

Fundamental Rules Classifications, Control and Appeal Rules

Civil Services Regulations Delegations of Financial Powers

Rules etc.)’ (emphasis supplied).

13. By order dated 15.7.99 Shri. M.N. Hague, was posted a s

Director, CCBF, but only by virtue of the direction of this Tribunal

in OA. 204/99, Shri Rathore, was permitted to look after the

current charge. Obviously, this would not have empowered Shri

Rathore to exercise statutory powers of the post of Director.

For the purpose of statutory powers, he was only an

Agriculture Officer. Thus, the contention of the learned counsel

for the applicant that Shri Rathore had been declared as „Head of

Office‟ and so could have exercised powers of appointment by

virtue of Rule-2(j) of the CCS (CCA) Rules has no force. In view of

the specific clarification given under Rule-12 in Government of

India‟s Order No.2 that an officer holding current charge of duties

of a post cannot exercise statutory powers. The conclusion is

obvious that Shri H.S. Rathore, at the time of recruiting the

applicants, was only a Agriculture Officer looking after the

current charge of the post of Director, CCBF, Suratgarh, and

he had no authority to make any appointment to Group – C &

D. It is a clear case of Shri Rathore exceeding his authority.

Even if, he had processed the appointment, offer of

appointments, obviously could not have been made while and

unless, he had obtained approval from the Ministry of

Agriculture. In fact, he did make a reference to the Ministry

on 16.11.99 seeking approval or filling up these posts but for

9

reasons best known to him, he did not wait for this approval

and went ahead and offered appointments to these applicants.

This raise a serious doubt about the motive behind the haste

on the part of Shri Rathore, in appointing these applicants .

The plea now taken on his behalf that such approval was not

required has no basis at all. This is more so, when the rules clearly

provide that an officer looking after the current charge should not

have exercised statutory powers of appointments.

14. These appointments are vitiated on other grounds also.

The fact that all the three applicants are related to Shri

Rathore, cannot be a mere co -incidence and reflects on the

intention behind making these appointments. The ways the

selection committee has been constituted by including even

Group-C members, is indicative of the irregular practice

knowingly adopted by Shri Rathore while making these

appointments.”

(emphasis supplied)

7. The Tribunal then adverted to the legal position that any

appointment made de hors the statutory rules has no validity

and that those who come by the back door have to return by the

same back door and cannot claim protection of principles of

natural justice. For that, the Tribunal relied on the exposition of

this Court in the case of Union of India & Ors. Vs. M.

Bhaskaran

1, State of U.P. & Ors. Vs. U.P. State Law Officers

Association & Ors.

2 and Kendriya Vidyalaya Sangathan &

1

(1995) Suppl. 4 SCC 100

2

(1994) 2 SCC 204

10

Ors. Vs. Ajay Kumar Das & Ors.

3 and in conclusion, observed

thus:

“17. In this case, Shri H.S. Rathore, not only acted totally

arbitrarily on every step of the process of recruitment but, acted

beyond his powers and jurisdiction while making the appointment.

For the view we have taken that these appointments were made by

an authority not competent to make such appointments, we do not

consider it necessary to go into the other aspects of the controversy

that one the appointees did not possess the requisite qualifications

or that the currency of the sanction of the posts had expired.

18. It is clear from the discussions in the preceding paragraphs

that these appointments have been made in a totally irregular

manner by an authority not competent to make such

appointments. The appointment letters have been rightly cancelled

and orders of cancellation do not call for any interference by this

Tribunal. The applicants have miserably failed to establish any

case in their favour. We dismiss these O.A. as totally devoid of

merits. No order as to costs.”

8. Feeling aggrieved, the respondent filed a writ petition in the

High Court of Judicature for Rajasthan at Jodhpur, being D.B.

Civil Writ Petition No.4235 of 2002. The Division Bench of the

High Court, by judgment and order dated April 23, 2010, upheld

the argument of the respondent that the Office Order dated

29.08.2000 merely records one fact that the appointment of the

respondent was made without approval of the competent

authority. In such a case, the services of respondent could be

terminated only after giving him opportunity of hearing. The

High Court observed thus:

3

(2002) 4 SCC 503

11

“Upon perusal of the above order, it is abundantly clear that the

only reason for termination of the services of the petitioner was

that appointment was made without approval of the competent

authority. No other ground with regard to competence of the

Director or with regard to allegation against the Director for

making illegal appointment is incorporated for establishing the

allegations. In this view of the matter, the reason for termination of

the services was not made known to the petitioner because the

department neither issued any notice nor provide any opportunity

of hearing to the petitioner before passing order dated 29.08.2004.

The only reason for terminating his services is that appointment

was made without approval of the competent authority; meaning

thereby, for contesting the matter before the Tribunal the grounds

other than the basic ground were submitted before the Tribunal

which were meant to be basis for terminating the services of the

petitioner; meaning thereby, the grounds agitated bef ore the

Tribunal were altogether different than the reasons incorporated in

the order Annex. – 4. In this view of the matter, we are of the

opinion that order of termination suffers from arbitrariness and

illegality, so also, passed against the principles of natural justice.

We are unable to understand the reason incorporated in the

reply filed by the respondents before the Tribunal because the

reasons incorporated in the reply for terminating the service of the

petitioner are not mentioned in the termination order.”

9. The High Court then adverted to the decision of D.K. Yadav

Vs. J.M.A. Industries Ltd.

4 and the decision of the Division

Bench of the same High Court in the case of Bhupal Singh Vs.

State of Rajasthan

5. Thereafter, the High Court concluded as

follows:

“Upon assessment of the termination order, we are of the opinion

that the Tribunal has committed gross error while dismissing the

4

(1993) 3 SCC 259

5

(1988) 2 RLW 428

12

original application filed by the petitioner. So also, the termination

order dated 29.8.2000 issued in violation of the principles of

natural justice by the Department for terminating the services of

the petitioner is patently illegal order and the same deserves to be

quashed.

Hence, while following the judgment of Hon‟ble Supreme Court in

D.K. Yadav‟s case (supra) and judgment of the Division Bench of

this Court in the case of Bhupa Singh Vs. State of Rajasthan

(supra), this writ petition is allowed. The impugned judgment dated

06.06.2002 passed by the Tribunal in Original Applica tion

No.206/2000 is set aside. The order dated 29.08.2000 (Annex.-4 to

the original application), terminating the services of the petitioner,

is quashed and set aside. Further, it is made clear that as a

consequence of quashing termination order Annex. – 4, the

petitioner 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 for

terminating the services of the petitioner, in accordance with law, if

valid and lawful grounds exist to show that petitioner has

committed any illegality while seeking appointment.”

The High Court thus opined that the termination order could

be passed only after giving opportunity to the respondent and

not otherwise.

10. Being aggrieved, the appellants filed the present Special

Leave Petition. This Court not only granted leave to appeal but

also stayed the operation of the impugned judgment during the

pendency of the appeal before this Court.

11. According to the appellant, the High Court committed

manifest error in overturning a well considered decision of the

Tribunal. For, the fact that no prior approval of the competent

authority as required under the statutory rules had been

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obtained before issuing the letter of appointment in favour of the

respondent, is indisputable. That reason has been explicated in

the subject office order dated 29.08.2000. The High Court ,

without recording any opinion on the efficacy of that reason,

proceeded to set aside the subject office order on the ground that

no opportunity was given to the respondent before issuing the

same. Relying on the exposition in the cases of Kendriya

Vidyalaya Sangathan (supra) and State of Manipur and Ors.

Vs. Y. Token Singh and Ors.

6, it is contended that giving prior

opportunity to the respondent before issuing the subject office

order was not obligatory; and no fruitful purpose would have

been served by giving such notice. The High Court, therefore, was

manifestly wrong. It is submitted that prior approval of the

competent authority is the quintessence for issuing a valid and

legal appointment order. Whereas, appointment order issued in

favour of the respondent being void ab initio, the competent

authority was duty bound to take corrective and remedial action

in the matter. That brooked no delay.

12. It is also submitted that the High Court mainly recorded

three aspects to interfere with the impugned office order. First,

6

(2007) 5 SCC 65

14

that the office order does not state that the Director Incharge was

not competent to issue the appointment letter. Additionally, there

is no tittle of indication in the said order that the appointing

authority committed any illegality in making appointment.

Second, the reason for termination of services of respondent was

not made known to him by issuing a notice or by providing him

an opportunity of hearing. Third, the Tribunal took extraneous

facts into account to uphold the subject office order, by adverting

to grounds not referred to therein. It is submitted that none of

the above, dealt with the core reason noted in the subject office

order - that the same was necessitated as an illegal appointment

had been made by the then Director Incharge H.S. Rathore,

Agriculture Officer and without prior approval of the competent

authority. The appellant therefore, submits that the impugned

decision of the High Court is manifestly wrong and deserves to be

set aside and the order of the Tribunal ought to be restored,

upholding the office order dated 29.08.2000.

13. Per contra, the respondent has supported the reasons

recorded by the High Court and vehemently contends that no

interference is warranted. According to the respondent, the

appointment of the respondent has been made after adhering to

15

necessary formalities pursuant to a public advertisement,

wherein the respondent emerged as the successful candidate.

Only thereafter he was appointed to the post of Veterinary

Compounder. It is submitted that the respondent acquired an

indefeasible right to remain on that post and in service.

According to the respondent, his services could not be terminated

without affording opportunity of hearing. Only upon affording

opportunity, the respondent could have been able to point out

that there was no illegality in his appointment. Inasmuch as lack

of approval of the competent authority before issuance of the

letter of appointment, does not render the appointment void but

at best, an irregularity. Since the appointment was not void ab

initio, no termination order could be issued without affording

opportunity to the respondent. The respondent has relied on the

decisions of this Court in the case of The Remington Rand of

India Ltd. Vs. The Workmen

7, Karnal Improvement Trust,

Karnal Vs. Parkash Wanti (Smt.) (Dead) and Anr.

8 and

Montreal Street Railway Company Vs. Normandin

9. The

respondent contends that the mere fact that the High Court has

not dealt with the reason stated in the subject office order about

7

(1968) 1 SCR 164

8

(1995) 5 SCC 159

9

AIR (1917) Privy Council 142

16

the lack of approval of competent authority, can be no basis to

whittle down the indefeasible right enured to him. Further,

deprivation of opportunity of hearing before passing the

termination order was fatal as the said order entailed civil

consequences to him. The respondent prays 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. Shailja Nanda Mishra, Mr. Satyendra Kumar, Mr.

Yuvraj Simant and Mr. Irshad Ahmad, learned counsels for

respondent.

15. Reverting to the subject office order, we are in agreement

with the stand taken by the appellant that the same is a

simpliciter termination and is no reflection on the conduct of the

respondent. It merely explicates that his appointment was illegal

having been made by the then Director Incharge H.S. Rathore,

Agriculture Officer and without prior approval of the competent

authority. No more and no less.

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16. We shall now consider the efficacy of the reason so recorded

in the office order. The recruitment procedure in relation to the

post of Veterinary Compounder is governed by the statutory rules

titled „Central Cattle Breeding Farms (Class III and Class IV

posts) Recruitment Rules, 1969, as amended from time to time

and including the executive instructions issued in that behalf. As

per the stated dispensation for such recruitment, the

appointment letter could be issued only by an authorised officer

and after grant of approval by the competent authority. Nowhere

in the Original Application filed by the respondent, it has been

asserted that such prior approval is not the quintessence for

issuing a letter of appointment.

17. For taking this contention forward, we may assume, for the

time being, that the then Director Incharge H.S. Rathore,

Agriculture Officer had the authority to issue a letter of

appointment. Nevertheless, he could do so only upon obtaining

prior written approval of the competent authority. No case has

been made out in the Original Application that due approval was

granted by the competent authority before issue of the letter of

appointment to the respondent. Thus, it is indisputable that no

prior approval of the competent authority was given for the

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appointment of the respondent. In such a case, the next logical

issue that arises for consideration is: whether the appointment

letter issued to the respondent, would be a case of nullity or a

mere irregularity? If it is a case of nullity, affording opportunity

to the incumbent would be a mere formality and non grant of

opportunity may not vitiate the final decision of termination of

his services. The Tribunal has rightly held that in absence of

prior approval of the competent authority, the Director Incharge

could not have hastened issuance of the appointment letter. The

act of commission and omission of the then Director Incharge

would, therefore, suffer from the vice of lack of authority and

nullity in law.

18. There is yet another aspect which has been glossed over by

the High Court. The subject office order dated 29.08.2000 opens

with the statement that the same was issued in compliance with

the Ministry‟s decision vide letter No.8 -6/1999-ADMN.III

dt.18.08.2000. By reference to the said communication -cum-

decision of the Ministry, it stood incorporated in the subject

office order. Besides, the subject office order explicitly states that

the appointment of the respondent was illegally made by the then

Director Incharge H.S. Rathore, Agriculture Officer. This reason

19

of illegal appointment takes within its fold the unilateral

constitution of the selection Board (not in accordance with

the prescribed constitution of the selection Board) and also H.S.

Rathore nominating himself as the Chairman of such Board,

although disqualified to be on the Board because the candidate

was related to him. As a result, the Ministry took holistic decision

on 18.08.2000 at the highest level after reckoning all aspects of

the matter including that it was not just a solitary appointment

of the respondent, but also other appointment letters issued by

H.S. Rathore under his signature. All such appointments have

been nullified by the Ministry in the same manner in addition to

initiating departmental action against H.S. Rathore. Tersely put,

all appointments made by H.S. Rathore came under the scanner

as being fraudulent and without authority. Such appointments

would obviously be a nullity in law.

19. The Tribunal had justly relied on the exposition in the cases

of M. Bhaskaran (supra) and in particular, Kendriya Vidyalaya

Sangathan (supra). In the latter case, in paragraph 5 of the

reported decision, while dealing with a similar situation, the

Court observed that if the appointment letters are nullity, having

been issued by an officer who did not wield authority to do so,

20

there was no question of observance of principles of natural

justice even though the affected party was not before the Court.

20. In the case of State of Manipur (supra), the appointment

letters were cancelled on the ground that the same were issued

without the knowledge of the department of the State. The Court

after adverting to the reported decisions concluded that the

candidates were not entitled to hold the posts and in a case of

such nature, principles of natural justice were not required to be

complied with, particularly when the same would result in

futility. It may be useful to advert to paragraph 22 of the reported

decision, which reads thus:

“22. The respondents, therefore, in our opinion, were not entitled

to hold the posts. In a case of this nature, where the facts are

admitted, the principles of natural justice were not required to

be complied with, particularly when the same would result in

futility. It is true that where appointments had been made by a

competent authority or at least some steps have been taken in that

behalf, the principles of natural justice are required to be complied

with, in view of the decision of this Court in Murugayya Udayar

10

.”

(emphasis supplied)

21. In paragraph 30 of the reported decision, the Court adverted

to the exposition in M.C. Mehta Vs. Union of India & Ors.

11

which evolved the „useless formality‟ theory. It is apposite to

10

(1991) Supp. (1) SCC 331

11

(1999) 6 SCC 237

21

reproduce paragraphs 30 to 32 of the reported judgment, which

read thus:

“30. In M.C. Mehta Vs. Union of India this Court developed the

“useless formality” theory stating: (SCCPP.246-47, para 22)

“More recently Lord Bingham has deprecated the

„useless formality‟ theory in R.v. Chief Constable of the

Thames Valley Police Forces, ex p Cotton

12

by giving

six reasons. (See also his article „Should Public Law

Remedies be Discretionary? 1991 PL, p.64.) A detailed

and emphatic criticism of the „useless formality theory‟

has been made much earlier in „Natural Justice,

Substance or Shadow‟ by Prof. D.H. Clark of Canada

(see 1975 PL, pp. 27-63) contending that Malloch and

Glynn were wrongly decided. Foulkes (Administrative

Law, 8

th

Edn., 1996, p.323), Craig (Administrative

Law, 3

rd

Edn., p. 596) and others say that the Court

cannot prejudge what is to be decided by the decision-

making authority. De Smith (5

th

Edn., 1994, paras

10.031 to 10.036) says courts have not yet committed

themselves to any one view though discretion is always

with the court. Wade (Administrative Law, 5

th

Edn.,

1994, pp. 526-30) says that while futile writs may not

be issued, a distinction has to be made according to

the nature of the decision. Thus, in relation to cases

other than those relating to admitted or indisputable

facts, there is a considerable divergence of opinion

whether the applicant can be compelled to prove that

the outcome will be in his favour or he has to prove a

case of substance or if he can prove a „real likelihood‟

of success or if he is entitled to relief even if there is

some remote chance of success. We may, however,

point out that even in cases where the facts are not all

admitted or beyond dispute, there is a considerable

unanimity that the courts can, in exercise of their

„discretion‟, refuse certiorari, prohibition, mandamus

or injunction even though natural justice is not

followed. We may also state that there is yet another

line of cases as in State Bank of Patiala Vs. S.K.

Sharma

13

, Rajendra Singh Vs. State of M.P.

14

that

even in relation to statutory provisions requiring

notice, a distinction is to be made between cases

where the provision is intended for individual benefit

12

(1990) IRLR 344

13

(1996) 3 SCC 364

14

(1996) 5 SCC 460

22

and where a provision is intended to protect public

interest. In the former case, it can be waived while in

the case of the latter, it cannot be 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 the said Dr. K.C. Rakesh, the orders of

appointment are issued, such orders are not valid. If

such appointment orders are a nullity, the

question of observance of principles of natural

justice would not arise.”

32. In Bar Council of India Vs. High Court of Kerala

15

it was

stated : (SCC p.323, para45)

“Principles of natural justice, however,

cannot be stretched too far. Their application may be

subject to the provisions of a statute or statutory rule.”

(emphasis supplied)

In the present case, the appointment letter was admittedly

issued without the 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 interfered with by the Court as admittedly the same was

not approved by the competent authority. The underlying

principle will apply proprio vigore to the present case, as the letter

of appointment has been issued by an officer who had no

authority to do so and also because it was issued without waiting

15

(2004) 6 SCC 311

16

(1997) 2 SCC 712

23

for the approval of the competent authority. Resultantly, there

was no necessity to afford opportunity to the respondent before

issuing the letter of cancellation of such appointment. The mere

fact that such letter of appointment had been issued in favour of

the respondent does not bestow any right in his favour much less

to insist for an opportunity of being heard.

23. Reverting to the impugned decision of the High Court, the

High Court has not analysed the efficacy of the crucial reason

recorded in the subject office order dated 29.08.2000 in its

correct perspective. Indeed, the High Court has noted that prior

approval of the competent authority was not mandatory. That

observation, in our opinion, is manifestly wrong. We affirm the

view expressed by the Tribunal that the appointment of

respondent was not in conformity with the governing Rules and

executive instructions in that regard.

24. Further, the High Court could not have interfered with the

subject office order solely on the ground that it was issued

without affording an opportunity to the respondent. The other

reason which had weighed with the High Court, in our opinion,

will be of no avail to the fact situation of the present case. To wit,

24

the fact that the subject office order does not attribute any

motives to the then Director Incharge, can be no basis to

invalidate the same. In our opinion, the office order records just

and tangible reason as to why the appointment of the respondent

is illegal. Unless the core reason mentioned in the subject office

order was found to be untenable, the High Court could not have

concluded that the subject office order was vitiated merely

because it was issued without notice or lack of opportunity to the

respondent. Similarly, the fact that the Tribunal has taken note

of other grounds urged by the parties (other than the reason

noted in the subject office order), per se, cannot be the basis to

invalidate the subject office order which is otherwise just and

proper. The High Court could have ignored those other

reasons/grounds taken into account by the Tribunal.

25. Reverting to the decisions relied upon by the respondent, we

fail to understand as to how the decision in the case of The

Remington Rand of India Ltd. (supra) will be of any avail to the

respondent. In that case, the Court was called upon to consider

the effect of not publishing the award passed by the Hon‟ble

Tribunal within the statutory period. In the context of that

question, the Court opined that the provision in Section 17(1) of

25

the Industrial Disputes Act was merely directory and not

mandatory and on that basis concluded that publication of award

beyond 30 days would not make it invalid. In the present case,

the letter of appointment could be issued by the designated

director and only after grant of prior approval from the competent

authority (the superior authority in the hierarchy of

administrative set up). Without such approval, the then Director

Incharge in no case could have rushed through the process of

issuing the letter of appointment, an action which was without

authority of law and a nullity.

26. In the case of Karnal Improvement Trust, Karnal

(supra), the Court considered the distinction between ministerial

acts and statutory or quasi judicial functions under the statute

and, in that context, observed that something should be done or

in a particular manner and expressly declaring what shall be the

consequence of non compliance, the effect thereof would be to

treat the infraction as a mere directory requirement and not

invalidate the action, so as to disregard the same. The principle

expounded in this decision will be of no avail to the respondent.

In light of factual matrix of this case, the letter of appointment in

favour of the respondent was issued illegally by the Director

26

Incharge H.S. Rathore, Agriculture Officer and without prior

approval of the competent authority. It was a nullity.

27. Even the case of Montreal Street Railway Company

(supra) cannot come to the rescue of the respondent. In the

present case, the requirement to obtain prior approval of the

competent authority has been made an essential requirement

and only then would the appointing authority be competent to

issue letter of appointment. For, after the proposal is submitted

for approval to the competent authority through proper channel

by the official duly authorised to do so, the competent authority

would reckon all aspects of the matter including whether the

selection process has been properly followed in all respects. That

would include the question such as whether the then Director

Incharge could have constituted the Board of seven members,

contrary to the established norms and moreso to act as

Chairman of such a Board after full knowledge that the candidate

appearing for the interview was his relative.

28. We have no hesitation in concluding that in the fact

situation of the present case, giving opportunity of hearing to the

respondent before issuance of the subject office order was not an

27

essential requirement and 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 High Court, in our opinion, has

no application to the fact situation of the present case concerning

an appointment which is void ab initio and nullity.

29. Accordingly, we set aside the impugned judgment and

order of the High Court and restore the judgment of the

Central Administrative Tribunal dated 06.06.2002, dismissing

the Original Application filed by the respondent.

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

to costs.

.………………………….CJI.

(Dipak Misra)

…………………………..….J.

(A.M. Khanwilkar)

…………………………..….J.

(Dr. D.Y. Chandrachud)

New Delhi;

March 13, 2018.