R.R.K. Trivedi, J. - (1.) THIS appeal is from the judgment and order dated 2.12.1993 rejecting Writ petition No. 30126 of 1993 filed by the appellants challenging the order dated 20.8.1993 passed by respondent No. 3 as president of Nagar Palika, Respondent No. 1 Annexures '9' to the writ petition, and orders of the same date, Annexure 10 to 17 to the writ petition, terminating services of the applicants. Facts giving rise to this appeal are that there were eight substantive vacancies in Safai department of Nagar Palika, Azamgarh. Steps to fill these, vacancies were taken and names of suitable candidates were called through Employment Exchange. It is stated that on 15.4.1993 interview took place but it was cancelled by order of the President and the Executive Officer was directed to advertise the posts in newspapers inviting applications. The posts were accordingly advertised in local Hindi daily newspaper 'Deval Dainik' dated 20.4.1993 and names were also called from the Employment Exchange. A copy of the advertisement has been filed as Annexure '2' to the counter affidavit and Annexure '4' to the rejoinder affidavit filed in the writ petition. According to this advertisement 29.4.1993 was the last date for receiving applications. In the advertisement it was also mentioned that candidates already serving in the Nagar Palika on daily wages shall be given preference. It also required to give proof of age and character certificate. However, on 29.4.1993 (which was last date according to the advertisement for receiving applications) itself the candidates were interviewed and selected and on 30.4.1993 appointment orders were issued in their favour by the Executive Officer and on 1.5.1993, it is alleged, they joined in pursuance thereof. From the record it appears that complaints were made with regard to these appointments and the president of the Board sent for the record of the selection proceedings and made an enquiry and thereafter passed a detailed order on 21.7.1993 directing the Executive Officer to cancel the appointments. When his order was not carried out he passed order dated 20.8.1993 directing the Safai Inspector to pass necessary orders terminating the services of the appellants. The order dated. 21.7.1993 mentioned above has been filed as Annexure '6' to the counter affidavit filed in the writ petition. At this place it will also be relevant to mention that District Magistrate, Azamgarh also passed an order on 19.8.1993 addressed to the Executive Officer, Municipal Board, with reference to the meeting held on 9.8.1993. In this order it has been mentioned that the matter of appointment of the appellants has been got enquired from the Chief Revenue Officer, Azamgarh and according to his report dated 18.8.1993 serious irregularities have been committed in making appointments. It was required by this order to cancel the appointments in public interest. A copy of this letter was also sent to the President of the Nagar Palika. The order of the District Magistrate dated 19.8.1993 has been filed as Annexure '9' to the counter affidavit filed in the writ petition. Appellants filed Writ petition No. 30126 of 1993 challenging the order dated 20.8.1993 in this Court on 24.8.1993 which was heard by a learned Single Judge on 25.8.1993. Counsel for the respondents put in appearance and accepted notice of the case. Time for filing counter and rejoinder affidavits was granted. Thereafter learned Single Judge passed a detailed order leaving it open to the authorities concerned to make an enquiry into the matter giving opportunity of hearing to the appellants and pass a fresh order regarding service of the appellants and the operation of the order was stayed till 4.10.1993. Counter affidavit was filed on 21.8.1993, rejoinder affidavit was filed on 5.11.1993 along with an application. Thereafter, the writ petition was heard on merits by another learned Single Judge and it was dismissed on 2.12.1993. Aggrieved by the order dated 2.12.1993, this special appeal has been filed by the appellants, Counter and rejoinder affidavits have been exchanged between the parties and some fresh documents have also been filed at this stage.
(2.) WE have heard learned counsel for parties and also perused the material on record. Learned counsel for the appellants has submitted that the president of the Nagar Palika, Respondent No. 3, had no authority in law to interfere with the functioning of the executive officer in making appointments of permanent inferior staff in exercise of his statutory function as provided under Section 74 and 75 of U.P. Municipalities Act, 1916 (hereinafter referred to as the Act) and the order dated 20.8.1993 passed by the president was wholly illegal and without jurisdiction and on this basis the services of the appellants could not be terminated. With reference to Section 60(1)(e) of the Act it has been submitted that the Executive Officer exercised the functions of Board under Sections 75 and 76 of the Act and the appointments made in discharge of this function could not be legally set at naught by the president. The learned counsel has further submitted that the appellants were legally appointed by an authority competent in law to make such appointments and they could not be deprived of their job without giving any opportunity of hearing by the impugned orders and the orders are liable to be quashed on this ground alone and the view taken by the learned Single Judge that no opportunity of hearing was required in the facts of the present case is not justified and is patently erroneous in law. Reliance has been placed by learned counsel in case of Shridhar v. Nagar Palika Jaunpur and others reported in : (1990) 1 U.P.L.B.E.C. Page 1 (S.C.). Learned counsel for the appellants has further submitted that approval of the president of the Board for such appointments was legally required either under the Act or under any of the Rules or Regulations. Learned counsel has submitted that in the impugned order dated 20.8.1993 passed by the respondent No. 3 only two reasons have been assigned that appointments were not approved by the president of the Board and they are not regular, hence their services are terminated. It has been submitted that the respondents could not justify the order by supplying other materials and by fresh reasonings, in the shape of affidavit or otherwise. Learned counsel has submitted that validity of the order has to be judged by the grounds mentioned in the order itself. The learned counsel has relied on the case of Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others : A.I.R. 1978 S.C. 851. Learned counsel for respondents, on the other hand, has submitted that there was a deep rooted conspiracy in making appointments of appellants for ulterior motives and to exclude all other candidates who had applied for appointment. Learned counsel has submitted that 29.4.1993 was the last date for receipt of the applications. It was not fair and reasonable on the part of the executive officer to conclude the matter of appointment the same day, i.e. on 29.4.1993. However, same day a selection committee was constituted consisting of three persons, same day the candidates are alleged to have been interviewed and same day selection was made and confirmed by the Executive Officer. All these proceedings done in a peculiar way gave rise to serious suspicion against the bona fides of the selection and the appointments so made been rightly set aside. This matter had become a matter of concern for the authorities which is clear from the order of the District Magistrate dated 19.8.1993 which was passed after a thorough enquiry conducted through the Chief Revenue Officer, an independent authority, and also from the order dated 21.7.1993 passed by the President of the Board which was also mentioned in the order dated 20.8.1993 filed as Annexure '9' to the writ petition, and this subsequent order was passed by the president as the earlier order dated 21.7.1993 was not complied with by the Executive Officer. The learned counsel relying on Clauses (b) and (bb) of Section 50 of the Act has submitted that the president had authority for a general supervision over all officers and works of the Board and he could also determine the question arising in respect of service which will include the matter of appointment as involved in the present appeal and it is not correct to say that the president had no power. Learned counsel for respondents has further submitted that as the appointments of appellants were result of a fraudulent exercise of power by the Executive Officer for making appointments of persons of his choice with ulterior motives, no opportunity of hearing was required to be given and the principles of natural justice could not be allowed to be invoked in such facts and circumstances. Reliance has been placed in case of U.P. Junior Doctors Action Committee v. Dr. B. Sheetal Nandwani and others : AIR 1991 S.C. 909.
(3.) WE have considered the rival submissions made by the learned counsel for parties and perused the order of the learned Single Judge impugned before us. The learned Single Judge has taken the view that 29.4.1993 was fixed for receiving applications. Twenty Four persons applied against seven vacancies which were advertised. On the same day without calling the candidates for interview, appointments were made by showing a bogus selection. Since the appointments of the appellants were made in wholly illegal manner, as such, the question of giving opportunity of hearing before terminating their services does not arise. From a perusal of the order of the learned Single Judge, it is clear that interference has been refused mainly on the ground that the appointments in question were made illegally and the selection was not fair. We have seen the order of the president dated 21.7.1993 and order of the District Magistrate dated 19.8.1993. The conclusions in the order of the District Magistrate are based on the enquiry conducted by the Chief Revenue Officer of Azamgarh. This enquiry was directed in the meeting of 9.8.1993 which was attended by the president of the Board, certain members of the Board who had raised objection with regard to the appointment of appellants and in this meeting a demand was made for making enquiry. This meeting was a regular meeting to consider the working of the Municipal Board. The enquiry was entrusted to Chief Revenue Officer. The conclusion may be reproduced here for better appreciation: The enquiry conducted by the president of the Board also contained almost the identical conclusions which were mentioned in his order dated 21.7.1993. Copy of the order dated 21.7.1993, though was mentioned as Annexure 9 -A in the index to the writ petition but it was subsequently scored of and was not filed alongwith the writ petition. In the rejoinder affidavit the appellants tried to say that they were not aware of the order dated 21.7.1993 passed by the president of the Board. However, the stand taken by the appellants does not appear to be correct as the order dated 20.8.1993, Annexure '9' to the writ petition and impugned by the appellants clearly mentions the existence of the order dated 21.7.1993. The conclusion drawn by both the authorities is that no interview had taken place and no intimation was given to the candidates. In these circumstances, in our considered opinion, the process adopted for appointment of appellants cannot be termed as fair and free from doubt. It is well established that unfairness and arbitrariness vitiates the entire action taken by the authority in discharge of its functions. It is admitted that the post was advertised in newspaper and the last date for giving applications was 29.4.1993. No time limit was fixed so far as the date 29.4.1993 is concerned. Thus any body could file application upto the last minute of the working hours of that day and no steps could be taken for calling candidates for interview etc. It does not stand to reason as to how the entire selection proceedings could be concluded after the working hours. This fact in itself renders the entire selection proceedings highly doubtful.;