2018 (3) TMI 1971 - SC - Indian Laws

Appointment to the post of Veterinary Compounder without approval of the Competent Authority - 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? - whether his services could be disrupted without giving him an opportunity of hearing? - violation of principles of natural justice or not. HELD THAT - 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 - 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 appointment of the respondent. Whether the appointment letter issued to the respondent, would be a case of nullity or a mere irregularity? - HELD THAT - 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. In the case of State of Manipur 2007 (2) TMI 693 - SUPREME COURT , 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. 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. The view expressed by the Tribunal is affirmed that the appointment of respondent was not in conformity with the governing Rules and executive instructions in that regard - 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. Thus, there are 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 essential requirement and it would be an exercise in futility - appeal allowed.

Summary

Issues Involved
1. Whether the appointment of the respondent to the post of Veterinary Compounder, made without the approval of the Competent Authority, was a nullity or a mere irregularity.
2. Whether the respondent's services could be terminated without giving him an opportunity of hearing.

Detailed Analysis

Issue 1: Nullity or Mere Irregularity of Appointment
The respondent was appointed as a Veterinary Compounder by H.S. Rathore, the then Agriculture Officer and Director Incharge, without the approval of the Competent Authority. The appointment was made on a provisional and temporary basis following an advertisement. However, the Ministry of Agriculture, Department of Animal Husbandry and Dairying, later issued an office order terminating the respondent's services, citing the appointment as illegal due to the lack of approval from the Competent Authority.

The Central Administrative Tribunal (CAT) analyzed the statutory rules and found that the appointment process was not in conformity with the Central Cattle Breeding Farm (Class III and IV Post) Recruitment Rules, 1969. The Tribunal noted that the selection process was conducted by a Board unilaterally constituted by H.S. Rathore, which included members not authorized to be part of such a Board. Moreover, the Tribunal highlighted that H.S. Rathore had a direct relationship with the respondent, raising questions about the motives behind the appointment.

The CAT concluded that the appointment was void ab initio, as it was made by an unauthorized officer without the necessary approval from the Competent Authority. This lack of authority rendered the appointment a nullity rather than a mere irregularity.

Issue 2: Termination Without Opportunity of Hearing
The High Court of Judicature for Rajasthan at Jodhpur initially overturned the CAT's decision, stating that the termination order did not provide the respondent with an opportunity of hearing. The High Court emphasized that the termination order only mentioned the lack of approval from the Competent Authority and did not elaborate on other grounds for termination. The High Court relied on the principles of natural justice, asserting that the respondent should have been given a chance to contest the termination.

However, upon appeal, the Supreme Court disagreed with the High Court's reasoning. The Supreme Court held that the termination order was a simpliciter termination, merely stating that the appointment was illegal due to the lack of approval. The Court emphasized that the requirement for prior approval from the Competent Authority was essential, and the absence of such approval rendered the appointment void ab initio.

The Supreme Court referenced several precedents, including the cases of Kendriya Vidyalaya Sangathan and State of Manipur, to support the view that in cases of appointments made without authority, the principles of natural justice do not necessitate an opportunity of hearing. The Court concluded that providing an opportunity of hearing would be a futile exercise in this context, as the appointment was inherently illegal and void.

Conclusion
The Supreme Court set aside the High Court's judgment and restored the CAT's decision, affirming that the appointment of the respondent was void ab initio due to the lack of approval from the Competent Authority. Consequently, the termination order did not require an opportunity of hearing, as the appointment was a nullity from the outset. The appeal succeeded, and the respondent's original application was dismissed.