Dr. Smt. Madhurima Dixit W/O ... vs State Of U.P. Thru Prin. Secy. ...
2013 Latest Caselaw 761 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
Lucknow Bench Lucknow
 

 
***********
 
[ A.F.R. ]
 
Reserved On:-  19.03.2013       
 
Delivered On:-  11.04.2013       
 
Court No. - 27
 

 
1.	Case :- SERVICE BENCH No. - 595 of 2009
 
	Petitioner :- Dr. Smt. Madhurima Dixit W/O Mukesh Dixit 	[At:02:00 P.M.]
 
	Respondent :- State Of U.P. Thru Prin. Secy. Cooperative & 	Others
 
	Petitioner Counsel :- Ram Raj
 
	Respondent Counsel :- C.S.C.,B.S. Yadav,K.K. Singh,Nisar 	Ahmad,O.P. Srivastava
 
AND
 
2.	Case :- SERVICE BENCH No. - 2008 of 2009
 
	Petitioner :- Rahimal S/O Ram Ratan And Others
 
	Respondent :- State Of U.P.Through Prn.Secy.Cooperative 	And Others
 
	Petitioner Counsel :- B.R.Singh,Shiv S.E.Chitambar
 
	Respondent Counsel :- C.S.C.,A.P.Srivastava,I.B.Singh,Ram 	Raj,Sudeep Seth
 

 
Hon'ble Devi Prasad Singh,J.

Hon'ble Vishnu Chandra Gupta,J.

[Delivered by Hon'ble Mr. Justice Devi Prasad Singh]

1. Factual matrix of the case is an another instance depicting the fall of governance on moral values in our system and also is an instance of blatant abuse of power. The facts giving rise to the writ petitions are discussed hereinafter.

2. The petitioner was appointed in accordance with rules in District Cooperative Bank Limited, Agra, after due selection through a duly constituted selection committee on 21.2.2000. The selection and appointment was duly approved by the U.P. Cooperative Institutional Service Board (in short the Board), in pursuance of power conferred by Regulation 5 of the U.P. Cooperative Societies Employees' Service Regulations, 1975 (in short Service Regulations).

3. While serving in the Bank, the petitioner moved an application dated 13.2.2004 (Annexure No.10 to the writ petition) to Northern Railway Primary Cooperative Bank Limited, Lucknow, for her transfer and absorption. It was indicated in her application by the petitioner that the Bank, vide its resolution No.8 dated 20.7.2002, had permitted and issued no-objection-certificate for her transfer to the Northern Railway Primary Cooperative Bank Limited, Lucknow. The no-objection-certificate was issued subject to approval by the Board. Another no-objection-certificate was issued on 3.6.2005 (Annexure No.13 to the writ petition) for absorption of the services. The Northern Railway Primary Cooperative Bank Limited, Lucknow, considered petitioner's application dated 13.2.2004 (supra) and vide its resolution dated 2.2.2008 (Annexure No.10 to the writ petition) resolved to induct the petitioner as Assistant Manager Class-2. The petitioner opposed the resolution on the ground that she was working on the post of Senior Branch Manager in the Bank hence she should not have been appointed on a post of lower cadre. She moved an application dated 8.2.2008 to the respondent No.4. In the meantime, the Committee of Management of the Northern Railway Primary Cooperative Bank Limited, Lucknow, was suspended on 4.8.2008. The application moved by the petitioner was considered under Rule 394 and the Joint Registrar, vide letter dated 9.4.2008 granted the approval according to earlier resolution dated 2.2.2008 permitting the petitioner to discharge duty in the Northern Railway Primary Cooperative Bank Limited, Lucknow, for one year on deputation after seeking approval from the Board. The Board, vide its order dated 19.4.2008 (Annexure No.13 to the writ petition) granted approval for appointment of the petitioner as Manager and in consequence, thereof, the petitioner joined duty as Manager on 25.4.2008.

4. The petitioner moved an application dated 19.5.2008 for her absorption in Northern Railway Primary Cooperative Bank Limited, Lucknow, which was considered and by a resolution, the petitioner was permitted for absorption subject to approval by the Board. In pursuance of approval of the Board, the petitioner's services was absorbed on 5.2.2009 with the borrowing department after due sanction from the Board vide its order dated 20.1.2009 on the post of Manager. The Northern Railway Primary Cooperative Bank Limited, Lucknow, communicated decision with regard to absorption, vide its letter dated 5.2.2009. On behalf of the Board, the Secretary communicated decision vide letter dated 20.1.2009 (Annexure No.32 to the writ petition). After absorption in Northern Railway Primary Cooperative Bank Limited, Lucknow, the petitioner immediately submitted resignation from her parent Bank i.e., District Cooperative Bank Limited, Agra on 5.2.2009 (Annexure No.7 to the writ petition) which was accepted.

5. It appears that absorption of the petitioner was not appreciated by someone in the Government. Hence, the Principal Secretary of the Department, vide letter dated 19.1.2009 instructed the Additional Registrar, to relieve the petitioner from Northern Railway Primary Cooperative Bank Limited, Lucknow, and revert back to the District Cooperative Bank Limited, Agra. The specific pleading as contained in para 41 to the writ petition, has not been denied. The letter dated 19.1.2009 as contained in Annexure No.25 to the writ petition in pursuance of pleading contained in para 41, is reproduced as under:- "संख्याः7603/पी०एस०एस०/09

दिनांक 19 जनवरी , 2009

अपर निबन्धक (बैंकिंग)

सहकारी समितियां, उ० प्र०,

लखनऊ।

उच्च स्तर से यह अपेक्षा की गयी है कि श्रीमती मधुरिमा दीक्षित, लिपिक नार्दन रेलवे इम्प्लाइज सहकारी बैंक से तत्काल हटा दिया जाय। तद्नुसार श्रीमती मधुरिमा दीक्षित को नार्दन रेलवे इम्प्लाइज सहकारी बैंक से कार्यमुक्त कर उन्हें जिला सहकारी बैंक, आगरा जहां के वे मूल कर्मचारी हैं, को वापस कर दिया जाय।

19.01.2009

प्रतिलिपि जिला सहायक निबन्धक, सहकारी समितियां, उ० प्र०, लखनऊ को उपरोक्तानुसार कार्यवाही सुनिश्चित किये जाने हेतु।

19.01.2009

(अमल कुमार वर्मा)

प्रमुख सचिव

सहकारिता विभाग,

उत्तर प्रदेश शासन।"

6. After perusal of letter of the State Government dated 19.1.2009, a Division Bench of this Court had admitted the Writ Petition on 16.4.2009 and stayed the consequential impugned order dated 26.3.2009 contained in Annexure No.1 to the writ petition, passed by the Joint Registrar Cooperative Societies, U.P., being based on extraneous consideration.

7. The impugned order was passed purported to be under the power conferred by Section 128 (1) of the Act (page 55). The impugned order was passed purported to be in pursuance of recommendation of the Northern Railway Primary Cooperative Bank Limited, Lucknow, dated 18.3.2009 (Annexure No.2 to the writ petition), which is alleged to be based on certain irregularities in the process of petitioner's absorption.

8. It appears that when this Court stayed the impugned orders (Annexure No.1 and 2 to the writ petition), the Northern Railway Primary Cooperative Bank Limited, Lucknow, reconsidered the petitioner's case with regard to absorption and by a resolution dated 15.4.2009 rescinded its earlier resolution and communicated the decision to the petitioner by the impugned order dated 15.4.2009 (Annexure No.40 to the writ petition). A perusal of the impugned order dated 15.4.2009 passed by the respondent Northern Railway Primary Cooperative Bank Limited, Lucknow, at the face of record, seems to be passed anti-dated after the interim order dated 19.4.2009 was passed by this Court that too, without considering the fact that the petitioner already resigned from her parent Bank.

9. Writ Petition No.155 (S/B) of 2009 was filed by the petitioner challenging the impugned order dated 19.1.2009 (supra) whereby, direction was issued by the State Government to remove the petitioner. However, by the time, the Court could pass appropriate order, the impugned orders were passed reverting back the petitioner to her parent department. Hence by the order dated 6.2.2009 passed by the Division Bench of this Court, the Writ Petition No.155 (S/B) of 2009, was dismissed as withdrawn.

10. Writ Petition No.2008 (S/B) of 2009 was filed by four employees working in the respondent Northern Railway Primary Cooperative Bank Limited with the grievance that the petitioner was appointed as Assistant Manager in the year 2003 and 2005 respectively whereas Madhurima Dixit was on deputation in the year 2008. Her absorption in the Northern Railway Cooperative Bank, Limited, Lucknow, by the order dated 20.1.2009 to officiate the charge, was stayed by the order dated 24.12.2009 passed by this Court.

11. While filing writ petition, the petitioners have not disclosed the pendency of Writ Petition No.595 (S/B) of 2009 in which direction issued by the State Government to remove the petitioner and action taken thereon, was the subject matter of dispute. Hence, the interim order dated 24.12.2009, passed by this Court, was later on vacated by the order dated 12.1.2010, when the facts were brought to the notice of the Court.

12. Learned counsel for the petitioner submits that since the petitioners of the Writ Petition No.2008 (S/B) of 2009 approached this Court with unclean hands concealing material facts, the writ petition is liable to be dismissed with exemplary costs.

13. While assailing the impugned orders, learned counsel for the petitioner Sri Ram Raj including Sri Sudeep Seth for respondent Board, submitted that once absorption has been done under Regulation 5 with due sanction of Board, it is not open for review. The respondents could neither have reviewed nor could have reverted back the petitioner to her parent department since she had already tendered her resignation and her resignation has been accepted.

14. Petitioner's counsel further submits that since foundation of entire action suffers from mala fide or malice in law, based on the letter dated 19.1.2009 (supra), the subsequent action taken thereon, at later stage, vitiates. No independent mind was applied by the respondent No.4. The entire action is based on the directions issued by the State Government. Who triggered the gun on the petitioner, is not borne out from the record but the fact remain that the letter dated 19.1.2009 and the pleading on record has not been disputed.

It has further been submitted by the petitioner's counsel that once the petitioner's service was absorbed and she tendered resignation in her parent department, it was not open on the part of the respondent to revoke the order and repatriate the petitioner without due compliance of principle of natural justice and show cause notice.

15. Sri I.B. Singh, learned Senior Counsel appearing for respondent No.4, Northern Railway Primary Cooperative Bank Limited, Lucknow, defended the impugned action pointing out certain illegality in the decision making process. He admits that the petitioner was appointed as Senior Branch Manager in District Cooperative Bank Limited, Agra. Submission is that the resolution No.7218 of the Committee of Management was conditional one subject to recasting of seniority list of Bank employees and fulfilment of necessary conditions, guidelines of service rules and Board circulars. Submission is that no decision was taken with regard to absorption. Further submission is that the Committee of Management was suspended by the Joint Registrar, and Sri R.K. Jain, was appointed Additional Administrator. It is submitted that consent given by Sri R.K. Jain was only for one year. He was not having any authority to write letter dated 11.4.2008 in view of Rule 121 of U.P. Cooperative Societies Rules, 1968. The approval granted by the Board was only for one year. He further submits that resolution of the Board dated 20.1.2009 was subject to vacation of interim order passed in Writ Petition No.3236 (M/B) of 2008. He submits that the Chairman of Committee of Management wrote a letter to the Registrar, Cooperative Societies for cancellation of approval granted by the Board. In consequence thereof, a meeting was held and the Committee of Management vide its resolution dated 15.4.2009 resolved to repatriate the petitioner to her parent department. He submits that repatriation to parent department does not suffer from any impropriety or illegality. However, he also does not dispute that the action mooted in pursuance of the impugned letter dated 19.1.2009 of the State Government.

16. So far as resolution dated 15.11.2009 is concerned, it seems to be afterthought to overcome the interim order passed by this Court. We reiterate the observation made in the order dated 22.5.2009, the relevant portion of which is reproduced as under:-

"Earlier, an interim order dated 16.4.2009 was passed on the ground that the Principal Secretary of the department had informed his subordinate to remove the petitioner to fulfil the wishes of some high-ups in the government. Keeping in view the evidence on record and apparent mala fide, we had stayed the impugned order dated 26.3.2009 and permitted the petitioner to discharge duty on the post in question. During the course of hearing on 16.4.2009, the Court was not informed with regard to alleged meeting of the Committee of Management which was said to be convened on 15.4.2009. In case the petitioner was removed by the resolution of the Committee of Management dated 15.4.2009, then as a natural consequence, the learned counsel for the respondents should have informed on 16th April, 2009 during the course of hearing. Prima facie, we are of the view that the things have been managed to overcome the interim order dated 16.4.2009. We have already directed the respondents to permit the petitioner to discharge duty on the post in question but keeping in view the malicious act on the part of the respondents, we further direct the respondents to permit the petitioner to continue on the post ignoring the alleged resignation of the Committee of Management dated 15.4.2009 and pay salary."

STATUTORY PROVISIONS

17. Regulation 5 of the Service Regulations (supra), deals with the recruitment and approval of the Board, which is reproduced as under:-

"[5. Recruitment-- (i) Recruitment for all appointments in a co-operation society shall be made through the Board whether the recruitment is--

(a) direct; or

(b) by promotion from employees already in the service of the society; or

(c) by taking non deputation or otherwise, person already in the service of another society registered or deemed to have been registered under the Act, or a person in employment under a corporation an undertaking owned or controlled by the Central or the State Government body corporate administering a local fund.

(ii) Notwithstanding anything in clause (i) no reference to the Board shall be necessary in the following cases:

(a) when it is proposed to fill with the concurrence of the Registrar any post by means of deputation of a Government servant, or

(b) when the Managing Committee or any other authority competent to make the appointment proposed to fill up as a stop-gap measure for a period not exceeding six months a post by promotion from amongst the employees in the just below cadre on the principle of seniority subject to the rejection of the unfit:

Provided that any appointment thus made without consultation with the Board shall in every case, cease to have effect from the date on which the period of six months expires and the employees promoted to the higher post shall unless he has already been reverted to his original post within the said period of six months be deemed to have reverted from that date, to the post held by him immediately before such promotion:

Provided further that the employee appointed to the higher post under this sub-clause shall, in no circumstances, be promoted under this sub-clause to any still higher post within the said period of six months, nor shall be appointed under this sub-clause to the same post again after his reversion under the first proviso.

(iii) To facilitate the performance of the duties enjoined upon the Board under clause (I), every co-operative society shall communicate to the Board by 31st December every year the approximate number of vacancies likely to arise during the course of the next calendar year by reasons of creation of new posts, retirement, deputation or otherwise.

(iv) Notwithstanding anything contained in clause (i) recruitment to posts in Category IV shall be made by a selection committee which:

(1) In case of District Central Co-operative Banks, District Co-operative Federations, Uttar Pradesh Postal Employees' Co-operative Bank Limited, Lucknow and Oudh and Rohilkhand Railway Employees' Co-operative Bank Limited, Lucknow shall consist of--

(a) Chairman/Administrator of the Society, who shall be the Chairman;

(b) the Secretary of the Society, who shall be the Convener; and

(c) Assistant Registrar of the District; and

(2) In case of apex co-operative societies shall consist of--

(a) Chairman/Administrator of the Society or his nominee, who shall be the Chairman'

(b) Secretary/Managing Director of the Society, who shall be the Convener, and

(c) an officer not below the rank of an Additional Registrar, nominated by the Registrar,

(v) Selection made by the Selection Committee referred to in clause (v) shall be subject to the approval of the Board and appointments shall be made after the approval of the Board.

(vi) Notwithstanding anything contained in clause (iv), a co-operative society in which the appointments are to be made, shall send to the Board a requisition in the Form specified in Appendix "A" at least three months before the vacancy is sought to be filled up. No change shall ordinarily to be made by the Society in the requisition after the advertisement has been sent for publication.

(vii) In making recruitment to any post, the Board may require the appointing society or the society to which the appointing society is affiliated to send one of its officers to the Board and when the recruitment is to be made for a technical post or a post requiring specialised knowledge or skill, the Board may also request any appropriate institution or authority to depute a technical advisor to assist the Board.]"

Clause (c) of the Regulation 5 permits the appointment through deputation and otherwise of persons already in service of the registered societies, registered or deemed to have been registered. Legislature to their wisdom, used the word, "otherwise', means an appointment may be done on deputation or by absorption of deputationist and action taken thereon, shall be lawful.

Clause (v) provides that selection made by selection committee shall be subject to approval by Board and all appointments shall be made after approval of the Board and for that in view of clause (vi), the resolution shall be sent to Board in the form provided in the Appendix-A.

18. In the present case, admittedly, both the cooperative societies had resolved and sent their respective resolution to the Board and the Board after going through the resolution, exercised power conferred by clause (v), (vi) and (vii) of Regulation 5. In consequence thereof, the appointment letter with regard to petitioner's absorption in Northern Railway Primary Cooperative Bank Limited, Lucknow was issued. She had also tendered her resignation to her parent Bank.

19. The question cropped up, whether absorption could have been undone on the direction of higher authorities in the Government and that too, without providing opportunity of hearing or show cause notice and whether, the decision taken, could have been reviewed?

20. Attention of this Court has been invited to Regulation 10 (3) which deals with absorption. For convenience, Regulation 10 (iii) is reproduced as under:-

"10--(iii) Where permanent employee of a Co-operative Society opts for absorption in the services of another Co-operative Society, such absorption may be granted by the Board on the following terms and conditions, namely :

(1) Both the Co-operative Societies shall pass resolutions agreeing to such absorption and the absorbing society shall appoint such employees under it, on a post that is equivalent to the post already held by him or carries the next higher scale of pay.

(2) The employees shall resign his appointment under the first employing society from the date of his absorption under the other Co-operative Society on a permanent basis. The resignation shall be accepted by the Co-operative Society concerned within 3 months of the date of its receipt and on its failure to do so, it shall be deemed to have been accepted by it.

(3) In case of such absorption, all leave to the credit of the employee under the previous employing Co-operative Society as immediately before the date of absorption, shall lapse and the absorbed employee shall have no claim thereto after his absorption under another Co-operative Society.

(4) The initial pay of the employee in the time-scale attaching to the post under the new Co-operative Society, as on the date of absorption, shall be regulated as follows:

(a) when appointment to the new post involves assumption of duties or responsibilities of greater importance than those attaching to the old post, the employee shall draw, as initial pay, the pay admissible at the stage of the time-scale next above his substantive pay in respect of the old post;

(b) appointment to the new post does not involve such assumption the absorbed employee will draw as initial pay, the pay admissible at the stage of the time-scale which is equal to his substantive pay in respect of the old post, or, if there is no such stage, the stage next below that pay plus personal pay equal to the difference of the amount of his substantive pay in the old post and the initial pay to the drawn in the new post, and in either case, he will continue to draw that pay for such period as he would have received an increment in the time-scale of the old post had he continued there, or for the period after which an increment is earned in the time-scale of the new post, whichever is less. But if the minimum pay of the time-scale of the new post is higher than his substantive pay in respect of the old post, he will draw that minimum as initial pay;

(c) when appointment to the new post is made on the employee's own request and the maximum pay admissible in the time-scale of that post is less than the substantive pay of the employee in respect of the old post, he will draw that maximum as initial pay.]"

21. A plain reading of clause (iii) of Regulation 10 reveals that in pursuance of resolution of both the cooperative societies (supra), a person may be absorbed on a post equivalent to the post already held by him or on next higher scale of pay. Immediately after absorption, resignation shall be accepted by the cooperative societies concerned within three months and in case not accepted, it shall be deemed to have been accepted. Admittedly, in the present case, petitioner's resignation has been accepted by the District Cooperative Bank Limited, Agra. Clause (iii) of the Regulation further provides that absorbed employee will have no claim thereto with regard to any service benefit of parent Bank after date of absorption. In case literal interpretation is given to aforesaid provisions, then if an employee is absorbed and tenders resignations, then there shall be one way process and it may not be done undone by the same employer. Of course, such interpretation may not be applicable to a situation where some fraudulent act is committed for the purpose of absorption but even in that instance, it shall be necessary to serve a show cause notice.

RULE OF LAW

22. Democracy implies the supremacy of the law. If it were otherwise, the officeholders would be irresponsible and arbitrary despots and the judges inconstant and capricious cadis. The two pillars of democratic government are the primacy of the law and the budget.

Primacy of the law means that no judge or officeholder has the right to interfere with any individual's affairs or conditions unless a valid law requires or empowers him to do so. Nulla poena sine lege. No punishment unless ordered by a law. It is precisely the inability of the Nazis to understand the importance of this fundamental principle that qualifies them as antidemocratic. In the totalitarian system of Hitler Germany the judge has to come to his decision according to das gesunde Volksempfinden, i.e., in accordance with the sound feelings of the people. [Bureaucracy by Ludwig von Mises].

23. A plain reading of the impugned letter dated 19.1.2009 reveals that decision taken by the respondent No.4 to revert the petitioner to her parent department was in pursuance of oral instructions issued by the higher ups in the Government seems to be punitive. It is in flagrant violation of the principle of "Rule of Law"?

24. Hon'ble Supreme Court in the case reported in AIR 1967 SC 1427, Jaisinghani Vs. Union of India & ors, ruled that decision should be made by the application of known principles and rules and in general, such decision should be predictable and citizen should know where he is.

In AIR 1975 SC 2260: Smt. Indira Nehru Gandhi. Vs. Raj Narain, their lordships postulated the rule of law as under:-

"205. Rule of Law postulates that the decisions should be made by the application of known principles and rules and in general such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is not predictable and such decision is the antithesis of a decision taken in accordance with the rule of law."

In AIR 1969 SC 33: Chief Settlement Commissioner, Punjab and others. Vs. Om Prakash and others, their lordships of Hon'ble Supreme Court held that in our constitutional system, the central and most characteristic feature is the concept of rule of law which means in the present context, the authority of law courts to test all action of administration by the standards of legality. The Executive or administrative action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in competent court. Rule of law rejects the concept of dual state in which the governmental action is placed in privileged position of immunity from the control by law. Such a notion is foreign to our basic constitutional Concept.

25. In another case reported in 1969 2 SCC 262, A.K. Karipak and others. Vs. Union of India, Hon'ble Supreme Court held that under our Constitution, the rule of law pervades over the entire field of administration and every organ of the State is regularized by the rule of law. In a welfare state it is inevitable that the jurisdiction of administrative bodies is increasing at a rapid rate. The Concept of rule of law would lose its vitality if the instrumentalities of the state are not charged with the duty of discharging their functions in a fair and just manner.

26. In AIR 1982 SC 1325, Bachan Singh. Vs. State of Punjab, their lordships held that rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic features. The Rule of law excludes arbitrariness; its postulate is ''intelligence without passion ''and reason freed from desire'.

27. In JT 1996 Vol 9 SC 466 Chatar Singh. Vs. State of Rajasthan, their lordships held that Rule of Law should establish a uniform patron for harmonious existence in society where any individual should exercise his right to his best advantage to achieve excellence, subject to protective discrimination.

28. In (2002) 3 SCC 343, Arundhati Roy, In re.., while defining the Rule of law, their lordships opined that "Rule of law is the basic rule of governance of any civilized democratic polity. Our constitutional scheme is based upon the concept of rule of law which we have adopted and given to ourselves. Everyone whether individually or collectively is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, no one is above law notwithstanding how powerful and rich he or she may be. For achieving the establishment of the rule of law, the constitution has assigned special task to the judiciary in the country. It is only through court that rule of law unfold its contents and establishes its concept. For the judiciary to perform its function and duties affectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the court have to be respected and protected at all cost.

29. In (2000) 1 SCC 600, A.P. Aggarwal Vs. Government of NCT of Delhi and another, Hon'ble Supreme court held that it is well settled that every state action, in order to survive must be suspectible to the vice of arbitrariness which is the crux of article 14 of the Constitution and basic to the rule of law, the system which governs us (vide Shrilekha Vidyarthi Vs. State of U.P.).

30. In (2005) 3 SCC 284 Kalyan Chandra Sarkar Vs. Rajesh Ranjan, while deprecating the action of member of Parliament with regard to transfer of an accused from Patna Jail to Tihar Jail for causing repeated violation of Jail Manual, M.P. Demanding some of his privilege and immunities, their lordships of Hon'ble Supreme Court held that authorities escorting respondents from transferor to transferee jail shall strictly follow rules applicable to transit prisoners and no special privilege should be shown. Member of Parliament are not above the rule of law.

31. In 2006 (1) SCC 1 T.N. Godavarman Thirumulpad vs. Union of India and others, Hon'ble Supreme Court held that rule of law serves as an aorta. In the anatomy in our democratic system the ''law is supreme' in country or society professing the rule of law as its basic feature or characteristic does not distinguish between high or low, weak or mighty.

32. In (2010) 11 SCC 278 Indu Bhushan Dwivedi. Vs. State of Jharkhand and another, while reiterating the right of hearing in a case where a person's civil right was affected, their lordships of Hon'ble Supreme Court held that one of the basic canon of justice is that no one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affecting him reasonable opportunity to defend himself or represent his cause. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of concept of rule of law. This right has its roots in the notion of fair procedure.

33. In the case reported in (1978) 1 SCC 248 Maneka Gandhi Vs. Union of India, their lordships held that where a prejudicial order is passed against a person without providing opportunity of hearing or cause prejudice, it shall be against the basic concept of rule of law.

34. In (2011) 9 SCC 1 K.T. Plantation Private Limited and another. Vs. State of Karnataka, while reiterating the concept of rule of law evolved by judiciary as basic feature of the Constitution, their lordships held that importance of Rule of Law as constituent of basic structure of Constitution, re-emphasized. Though rule of law as a concept of explicitly finds no place in the Constitution but has been characterized as a basic feature of Constitution which cannot be abrogated or destroyed even by parliament and in fact binds Parliament. Rule of law is one of the most important aspect of doctrine of basic structure. Rule of law affirms Parliament's supremacy while at the same time denying it sovereignty over the Constitution.

35. While applying rule of law to the present context, there appears to be no room of doubt that direction issued by the State Government and communicated by the impugned order dated 19.1.2009 not only suffers from vice of arbitrariness and cannons of justice but it is against the Rule of law hence hit by Article 14 of the Constitution of India. Nothing has been brought on record nor argued to substantiate the right of the State Government to issue impugned direction by the order dated 19.1.2009. Such direction seems to violative of statutory provisions and is not based on any known principles of law. Being against the basic concept of rule of law, it suffers from substantial illegality.

INTERFERENCE BY HIGHER AUTHORITIES

36. Whether action could have been taken against the petitioner in pursuance of direction issued by the higher authorities (order dated 19.1.2009), requires consideration after referring certain cases relied upon by the petitioner's counsel.

37. It is admitted fact that a decision has been taken to revert back the petitioner to parent department in spite of the fact that she has tendered resignation from parent department because of her absorption in Northern Railway Primary Cooperative Bank Limited, Lucknow in pursuance of direction issued by the State Government as is evident from the order dated 19.1.2009. Thus, the statutory authority under the Act and Rules framed thereunder or the Regulations have not applied their own mind but their action is motivated by the instructions issued by the higher authorities. Such action on the part of the Government or the statutory authority, suffers from vice of arbitrariness.

38. In the case reported in (2004) 2 SCC 65: Bahadursinh Lakhubhai Gohil. Vs. Jagdishbhai M. Kamalia and others, their lordships of Hon'ble Supreme Court deprecated such action. It has been held that if any decision is taken by the statutory authority at the behest or on the suggestion of a person, who has no statutory role to play, the same would be ultra vires. Their lordships relied upon the earlier judgment reported in AIR 1952 SC 16, Commissioner of Police. Vs. Gordhandas Bhanji and (1978) 1 SCC 405 Mohinder Singh Gill. Vs. Chief Election Commissioner.

39. It is further held that when a thing is done in a post- haste manner, mala fide would be presumed in view of the opinion expressed by Hon'ble Supreme Court in the case reported in (1981) 4 SCC 716 S. P. Kapoor (Dr.) v. State of H.P. The aforesaid proposition is also borne out from one earlier judgment reported in (1984) 2 SCC 41: Chandrika Jha. Vs. State of Bihar and others. In Chandrika Jha (supra), the action of Chief Minister of the State was in issue whereby the Chief Minister issued certain direction and the Minister interfered with the working of statutory functionary under his department. Their lordship of Hon'ble Supreme Court defined the executive power of the State as under:-

"12. We fail to appreciate the propriety of the Chief Minister passing orders for extending the term of the first Board of Directors. Under the Cabinet system of Government, the Chief Minister occupies a position of pre-eminence and he virtually carries on the governance of the State. The Chief Minister may call for any information which is available to the Minister-in charge of any department and may issue necessary directions for carrying on the general administration of the State Government. Presumably, the Chief Minister dealt with the question as if it were an executive function of the State Government and thereby clearly exceeded his powers in usurping the statutory functions of the Registrar under bye-law 29 in extending the term of the first Board of Directors from time to time. The executive power of the State vested in the Governor under Art. 154 (1) connotes the residual or governmental functions that remain after the legislative and judicial functions are taken away. The executive power includes acts necessary for the carrying on or supervision of the general administration of the State including both a decision as to action and the carrying out of the decision. Some of the functions exercised under "executive powers" may include powers such as the supervisory jurisdiction of the State Government under Section 65-A of the Act. The Executive cannot, however, go against the provisions of the Constitution or of any law.

13. The action of the then Chief Minister cannot also be supported by the terms of Section 65-A of the Act which essentially confers revisional power on the State Government. There was no proceeding pending before the Registrar in relation to any of the matters specified in Section 65-A of the Act nor had the Registrar passed any order in respect thereto. In the absence of any such proceeding or such order, there was no occasion for the State Government to invoke its powers under Section 65-A of the Act. In our opinion, the State Government cannot for itself exercise the statutory functions of the Registrar under the Act or the Rules.

14. Neither the Chief Minister nor the Minister for Cooperation or Industries had the power to arrogate to himself the statutory functions of the Registrar under bye- law 29. The act of the then Chief Minister in extending the term of the Committee of Management from time to time was not within his power. Such action was violative of the provisions of the Rules and the bye-laws framed thereunder. The Act as amended from time to time was enacted for the purpose of making the cooperative societies broad-based and democratizing the institution rather than to allow them to be monopolized by a few persons. The action of the Chief Minister meant the very negation of the beneficial measures contemplated by the Act.

Since the Chief Minister and Minister for Cooperative of Industries interfered with the statutory functions of the Registrar under the Act, their lordship held that neither the Chief Minister nor the Minister for Cooperation or Industries had the power to arrogate to himself the statutory functions of the Registrar under bye- law 29. The extension of term of committee of management by the Chief Minister was not within his power. The Minister for Industries also exceeded his own authority in directing the manner in which the new Board of Directors was to be constituted by the Registrar under the relevant law.

40. In (2008) 7 SCC 117: Pancham Chand and others. Vs. State of Himachal Pradesh and others, Hon'ble Supreme Court reiterated the aforesaid proposition of law and held that Chief Minister or any authority other than the statutory authority could not entertain the application for grant of permit nor could issue any order thereon. The authority under the Act, has also no power to issue any direction except when the matter comes up before it under the statute (para 22)

41. In (2010) 11 SCC 557: Manohar Lal (Dead) By Lrs. Vs. Ugrasen (Dead) by Lrs. & others, Hon'ble Supreme Court has summarised the law on the point, to quote as under:

"23. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or any appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act."

42. In (2011) 5 SCC 435: Joint Action Committee of Air Line Pilots' Association of India (ALPAI) and others. Vs. Director General of Civil Aviation and others, their lordships of Hon'ble Supreme Court summarised the law with regard to interference by higher authorities as under, to quote:-

"26. The contention has raised before the High Court that the Circular dated 29.5.2008 has been issued by the authority having no competence, thus cannot be enforced. It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the Statutory Authority. In a democratic set up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision making authority and be prepared to give way to carry out command having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal. (Vide: The Purtabpur Co., Ltd. v. Cane Commissioner of Bihar & Ors., AIR 1970 SC 1896; Chandrika Jha v. State of Bihar & Ors., AIR 1984 SC 322; Tarlochan Dev Sharma v. State of Punjab & Ors., AIR 2001 SC 2524; and Manohar Lal (D) by L.Rs. v. Ugrasen (D) by L.Rs. & Ors., AIR 2010 SC 2210).

27. Similar view has been re-iterated by this Court in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16; Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia & Ors., AIR 2004 SC 1159; and Pancham Chand & Ors. v. State of Himachal Pradesh & Ors., AIR 2008 SC 1888, observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the Constitutional scheme.

28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner."

43. In view of the aforesaid settled principles of law, since the action against the petitioner mooted in pursuance of direction of higher authorities in terms of letter dated 19.1.2009, all subsequent decisions in pursuance thereof, suffer from vice of arbitrariness and hit by Article 14 of the constitution of India The Statutory authority has not applied its mind independently.

ARBITRARINESS

44. There is one other reason as to why the action taken by the respondents, suffers from vice of arbitrariness. It is settled proposition of law that in case the basis of the order is arbitrary without jurisdiction, the entire subsequent action falls. In a case reported in (2010) 9 SCC 437: Kalabharti Advertising Vs. Hemant Vimal Nath Narichania and others, their lordships held as under:-

"20. The aforesaid judgments are passed on the application of legal maxim sublato fundamento, candit opus, which means in case a foundation is removed, the superstructure falls.

21. In Badrinath v. State of T.N. this Court observed that once the basis of a proceeding is gone, all consequential acts, action, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to the administrative orders."

45. Since the basis of the impugned order is the instruction of higher authority dated 19.1.2009, all subsequent decision or action vitiates.

ABSORPTION.

46. It is not disputed that the petitioner was absorbed in the respondent Bank (opposite party No.4) and she has also tendered her resignation in the parent department.

47. In (1999) 8 SCC 378, Gajanan L. Pernekar. Vs. State of Goa and another, Hon'ble Supreme Court deprecated the revocation of an order whereby the incumbent was absorbed on the post of Head Master of the Government High School by an ex parte order in an arbitrary manner. The order was found to be bad on account of breach of principle of natural justice.

48. In (2004) 13 SCC 736, Jamil Ahmad. Vs. Industrial Development Commissioner and others, Hon'ble Supreme Court observed that a person absorbed cannot be put in a position for no fault on his part. More so, when he tendered resignation to his parent department, to quote relevant para 9 as under:-

"9. On the facts and circumstances of this case, we need not go in depth into the question sought to be urged on behalf of the Authority, for, we are of the view that the appellant having resigned from the Railways and having been absorbed in the Authority eight years back, cannot be put in a position for no fault of his, which results in his being an employee neither of the Authority nor of the parent department. The appellant cannot be made to suffer for the discrepancy, if any, assuming there is any such discrepancy which is not pleaded as a reason by the Authority. It is not the case of the respondents in the order dated 6.6.2002 that the appellant sought to enter the Authority from back door. Therefore, the question of cases, if any, where back-door entry into the service of the Authority may have been obtained, is of no consequence insofar as the facts and circumstances of the present case are concerned. Both the reasons stated In the order dated 6.6.2002, are, therefore, untenable."

49. In (2005) 8 SCC 394, Union of India through Government of Pondicherry and another. Vs. V. Ramakrishnan and others, Hon'ble Supreme Court ruled that even deputationist has right to continue to full of his or her term.

50. In the present case, since the petitioner after absorption, resigned from her parent department i.e., District Cooperative Bank Limited, Agra, which according to petitioner's counsel, has been accepted, then any action taken by the respondent at latter stage, may suffer with irreversible consequence and may cause irreparable loss and injury to the petitioner. A decision may be taken in accordance to law after circumspecting the over all facts and circumstances of the case and not on the instructions issued by the higher authorities.

MALICE IN LAW:

51. There appears to be no reason to doubt that the controversy suffers from malice in law being based on letter dated 19.1.2009. The statutory authority not proceeded on their own.

52. In a case reported in [2011 (29) LCD 950, Dr. S.P. Mittal. Vs. State of U.P. and others, a Division Bench of this Court of which one of us (Hon'ble Mr. Justice Devi Prasad Singh) was a member, has considered different pronouncements of Hon'ble Supreme Court with regard to malice in law, decided by one of us (Hon'ble Mr. Justice Devi Prasad Singh) as under:-

"24. The Apex Court has summarised "malice in law " in (Smt.) S.R.Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :

"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8)

25. The Apex Court further in para 9 of the judgment in S.R. Venkatraman (supra) observed:

" 9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."

26. In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said :

" We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved."

27. In Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 dealing with the question of validity of an order of transfer on the ground of malice in law , the Apex Court in para 16 of the judgment observed as under:

"16. .... Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."

28. In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:

"The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse'. In other words, ''it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others."

"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide."

29. In brief malice in law can be said when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. [See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198]. The inaction and laxity in this case, in our view, is malicious, if not in fact then in law."

53. The aforesaid proposition of law has been reiterated by the Hon'ble Supreme Court in the case reported in (2010) 11 SCC 557, Manohar Lal (Dead) by Lrs. Vs. Ugrasen (Dead) by Lrs. and others, and (2010) 9 SCC 437, Kalabharti Advertising. Vs. Hemant Vimal Nath Narichania and others (supra) and (2012) 4 SCC 407, Ravi Yashwant Bhoir. Vs. District Collector, Raigad and others. In Ravi Yashwant Bhoir (supra) Hon'ble Supreme Court held as under:

"47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. "Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.

48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: ADM, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745)."

54. Some of the other cases relied upon by the petitioner's counsel are (2009) 2 SCC 592 Somesh Tiwari. Vs. Union of India and others; (2005) 6 SCC 776 Punjab Electricity Board Limited. Vs. Jore Singh and others; (2003) 4 SCC 739, State of A.P. And others. Vs. Goverdhanlal Pitti; (2003) 8 SCC 567, Chairman and M.D. BPL Limited. Vs. S.P. Gururaja and others.

Since the action against the petitioner is actuated by the letter dated 19.1.2009, it suffers from malice in law. Hence it shall be hit by Article 14 of the Constitution.

PRINCIPLE OF NATURAL JUSTICE:

55. Since the petitioner's services were absorbed and she tendered her resignation from her parent department, whether the compliance of natural justice was necessary even if argument of the respondent's counsel is accepted with regard to alleged procedural illegality?

56. Now, it is well settled principle of law that principle of natural justice are meant to prevent miscarriage of justice and is applicable not only to domestic inquiries but also to administrative proceedings, vide A.K.Kraipak and others Vs. Union of India and others, AIR 1970 SC 150, and AIR 1976 SC 2228 Dr. G. Sarena Vs. University of Lucknow,

57. In (1987) 4 SCC 431: K.L. Shephard and others. Vs. Union of India and others, Hon'ble Supreme Court had considered the applicability of principle of natural justice with regard to pre and post decisional hearing. While holding that every agency requires to act fairly, principle of natural justice should be complied with while affecting civil rights and it should not be ousted by implication, to quote relevant portion:-

"15. Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame."

While considering the question with regard to post decisional hearing, a dissenting opinion was expressed with a statement that ordinarily, there is tendency to hold an order while providing post decisional hearing, to quote relevant portion:-

"16. ...There is no justification to throw them out of employment and then given them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose."

58. The purpose of Rules of natural justice is to prevent miscarriage of justice and it is applicable to administrative orders if the orders affect the right of citizen (supra). Arriving at the just decision is the aim of both quasi-judicial as well as administrative decision and unjust decision in administrative matter, may also reach with far reaching consequences, than the decision in a quasi-judicial matter. Generally, the principle of natural justice requires, opportunity of hearing should be given against whom an administrative order is passed. The application of principle of natural justice and its sweep depends upon the nature of rights involved, having regard to the State and context of statutory provisions.

Where a vested right is adversely affected by an administrative order or where civil consequence ensue, the principles of natural justice apply even if the statutory provisions do not provide for and the persons concerned, must be afforded opportunity of hearing and show cause before the order is passed, vide 1991 3 SCC 38, Union of India Vs. E.G. Nambudiri; AIR (1967) 2 SCC 625, State of Orissa. Vs. Dr. (Miss) Binopani Dei; ; 2001 (1) SCC 182, Kumaon Mandal Vikas Nigam Ltd. Vs. Girija Shanker Pant and others.; 2008 14 SCC 151, Sahara India (Firm) Vs. CIT.

59. In a case reported in (2003) 4 SCC 557 Canara bank and ors vs. Debases Das and ors, their lordships of Hon'ble Supreme court held that, "The expressions "natural justice" and "legal justice" do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice.

60. In a case reported in 2011 (2) SCC 258, Automotive Tyre Manufacturers Association Vs. Designated Authority, the Hon'ble Supreme Court has reiterated the principles of natural justice as sine qua non to justice meant to check arbitrary exercise of power by the State and its functionaries, to quote relevant portion as under:

"77. It is trite that rules of "natural justice" are not embodied rules. The phrase "natural justice" is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly i.e. fair play in action. In A.K. Kraipak (supra), it was observed that the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.

78. In Mohinder Singh Gill (supra), upon consideration of several cases, Krishna Iyer, J. in his inimitable style observed thus:

"48. Once we understand the soul of the rule as fairplay in action -- and it is so -- we must hold that it extends to both the fields. After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one's bonnet. Its essence is good conscience in a given situation: nothing more -but nothing less. The `exceptions' to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law, without, of course, making law lifeless, absurd, stultifying, self- defeating or plainly contrary to the common sense of the situation."

79. In Swadeshi Cotton Mills Vs. Union of India, R.S. Sarkaria,J., speaking for the majority in a three-Judge Bench, lucidly explained the meaning and scope of the concept of "natural justice". Referring to several decisions, His Lordship observed thus:

"Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice viz. (i) audi alteram partem and (ii) nemo judex in re sua. The audi alteram partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the altar of administrative convenience or celerity. The general principle--as distinguished from an absolute rule 65 (1981) 1 SCC 664 5 of uniform application--seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise." (Emphasis supplied by us)

80. It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. It is equally trite that the concept of natural justice can neither be put in a strait-jacket nor is it a general rule of universal application."

61. In pursuance of aforesaid broader proposition of law with regard to principles of natural justice, the impugned action based on the letter dated 19.1.2009 not only suffers from vice of arbitrariness but violative of principles of natural justice. Hence it is hit by Article 14 of the Constitution of India.

62. The Writ Petition No.2008 (S/B) of 2009 was filed without disclosing the interim order passed in the present writ petition. In consequence thereof, an ex parte interim order was passed. The petitioner approached this Court with uncleaned hand. Hence merely on this ground, the writ petition is liable to be dismissed with cost, vide 2010 (2) SCC 114, Dalip Singh Vs. State of Uttar Pradesh and others; 2003 (8) SCC 319, Ram Chandra Singh Vs. Savitri Devi; AIR 1962 SC 1821R. K. Dalmia vs. Delhi Administration.

63. To sum up, the action taken by the statutory authority in pursuance of the instructions issued by the Government in terms of order dated 19.1.2009, suffers from vice of arbitrariness and being ex parte decision, it is also violative of principles of natural justice. Since the petitioner has already resigned from her parent department without taking into account this aspect of the matter, no decision could have been taken by the respondents throwing the petitioner on road without any employment.

Since the impugned order intends for ex parte removal from the post in question, it shall be hit by Article 14 and 21 of the Constitution.

64. Since the petitioner has suffered at the behest of the State Government, high handedly and has been compelled to indulge into the litigation causing mental pain, agony and financial loss in view of law settled by the Hon'ble Supreme Court in the case reported in (2005) 6 Supreme Court Cases 344, Salem Advocate Bar Association (II), Vs. Union of India , the writ petition is liable to be allowed with exemplary cost and on account of concealment of fact, the Writ Petition No.2008 (S/B) of 2009 is liable to be dismissed.

65. With regard to bureaucracy, the German Jurist Max Weber has propounded certain theories. According to Weber, to quote:-

"A highly developed division of labour and specialization of tasks is one of the most fundamental features of bureaucracy. This is achieved by a precise and detailed definition of the duties and responsibilities of each position or office. The allocation of a limited number of tasks to each office operates according to the principle of fixed jurisdictional areas that are determined by administrative regulations.

The bureaucratic organization is characterized by a "rational" and impersonal regulation of inferior-superior relationships. In traditional types of administration (feudal, patrimonial), the inferior-superior relationship is personal, and the legitimation of authority is based on a belief in the sacredness of tradition. In a bureaucracy, on the other hand, authority is legitimized by a belief in the correctness of the process by which administrative rules were enacted; and the loyalty of the bureaucrat is oriented to an impersonal order, to a superior position, not to the specific person who holds it."

66. Bureaucracy is not only supposed to be honest and fair but must not succumb to the political pressure. Advice or opinion must be just, proper, fair and in accordance to rules. Bureaucrats must be dignified person, soft spoken but firm, sticking to constitutional mandate.

But the letter dated 19.1.2009 (supra) speaks otherwise. It shows the devaluation of governance and is the matter of deep concern. Situation requires discussion and debate to revamp the governance at earliest.

ORDER

67. Accordingly, the Writ Petition No.595 (S/B) of 2009 is allowed with costs. A writ in the nature of certiorari is issued quashing the impugned order dated 26.3.2009 contained in Annexure No.1, impugned letter dated 18.3.2009 contained in Annexure No.2, and the impugned order dated 15.4.2009 contained in Annexure No.40 to the writ petition with consequential benefits. The cost is quantified to Rs.2,00,000.00 (rupees two lakhs) which shall be deposited in this court within two months. Out of cost so deposited, Rs.1,00,000.00 (rupees one lakhs) shall be remitted to Mediation and Conciliation Centre, High Court, Lucknow Bench, Lucknow, and the rest may be withdrawn by the petitioner of Writ Petition No.595 (S/B) of 2009. In case the cost is not deposited, the Collector concerned, shall recover the same as arrears of land revenue and remit it to this Court within two months thereafter. The Registry of this court to take follow up action.

The Writ Petition No.2008 (S/B) of 2009 is dismissed with costs which is quantified to Rs.10,000.00 (ten thousands) and shall be remitted to Mediation and Conciliation Centre, High Court, Lucknow Bench, Lucknow. Let cost be deposited within two months. In case, cost is not deposited, it shall be recovered as arrears of land revenue from the petitioner of the said writ petition. Registry of this Court to take follow up action.

Chief Secretary of the State of U.P., may hold an inquiry and recover the cost from the persons who are accountable to pass the impugned orders in such an arbitrary manner.

[Justice Vishnu Chandra Gupta] [Justice Devi Prasad Singh]

Order Date :-11.4.2013

Rajneesh Dy.R-PS)

[Judgment Delivered on 11.4.2013]