The Judgment of the Court was delivered by

P.C Jain, J.:— All these writ petitions involved similar questions of facts and law and, therefore, they are being disposed of by a common order.

2. The petitioners in all these writ petitions have challenged the order dated 10th May, 1988 (Annex-12) whereby their services were terminated with immediate effect by respondent No. 2.

3. In all these writ petitions, the case of the petitioners is that they came to be appointed after due selection on regular basis in the pay-scale of Rs. 700-10-850-15-865 on the post of Ward Boy/Class-IV employee by non-petitioner No. 2 under the order dated 29th April, 1988. The petitioners have further averred that their selection was made in a proper manner and they were duly interviewed. After their section they joined their duties. The grievance of the petitioners is that their services have been illegally terminated vide order dated 10th May, 1988 passed by respondent No. 2. Their contention is that the order of termination dated 10th May, 1988 is in flagrant disregard of the principles of natural justice in as much as no opportunity of hearing was afforded to them. They have further contended in the writ petitions that the impugned order dated 10th May, 1988 is arbitrary and unreasonable and is also violative of Articles 14, 16 & 21 of the Constitution of India. All the writ petitions were admitted and notices were issued to the respondents. On stay petition this Court stayed the operation of the order (Annex-2) dated 10th May, 1988 and allowed the petitioners to continue on the post. Shri G.P Sharma, Advocate appeared for respondent No. 2 and the State was represented by Additional Government Advocate. Respondent No. 3 has filed reply.

4. Learned counsel for both the parties have agreed that the writ petitions may be disposed of at the stage of confirmation of the stay order as such, all the writ petitions are being disposed of opportunity of being heard to the petitioners.

5. Shri G.P Sharma, learned counsel for the respondent No. 2 vehemently submitted that the appointment given to the petitioners was in violation of the rules as the then Chief Medical and Health Officer gave the appointment without following the procedure laid down in the Rajasthan Class-IV Services (Recruitment and other Service Conditions) Rules 1963. In fact the Board was not properly constituted. The then Chief Medical and Health Officer, Jhunjhunu became the Chairman of the Board and appointed the petitioner for extraneous considerations. He has further contended that the appointment of the petitioners is not in accordance with rules 14, 17, 18 & 20 of the said Rules. He has further submitted that all the candidates whose names were available in the office of respondent No. 2 were neither considered nor they were given opportunity to appear in the Selection Board. Although more than 77 candidates were available as per list sent by the Joint Director, Samaj Kalyan and Sainik Welfare Board, Jhunjhunu. The list of the candidates from the District Regional Employment Exchange, Jhunjhunu was not available in the office of the respondent No. 2. Shri G.P Sharma has thus, submitted that such an appointment cannot be held to be valid in the eye of law and can only be held to be void appointment which does not confer any right to hold office.

6. Shri G.P Sharma has placed reliance on Sang Singh v. Municipal Board, Pokaran (1), Rita Mishra v. Director, Primary Education, Bihar (2) and Jagan Singh v. State Transport Appellate Tribunal Rajasthan (3) to substantiate his contention that if the order of appointment under challenge is void then observations of the principles of natural justice may be avoided.

7. Shri Dhankar has placed reliance on un-reported judgment of this Court in DB Civil Writ Petition No. 408/87 Bhairon Singh v. Sawai Madhopur Via Tonk Zila Dudh Utpadak Sahakari Sangh Ltd. connected appeals decided on 23rd March, 1987 to substantiate his contention that even if the order under challenge may be void still the principle of audi-alteram partem being basic concept of principles of natural justice should be observed.

8. Thus, a short question which is involved in this writ petition is whether before passing the order of termination dated 10th May, 1988 an opportunity of hearing should have been given to the petitioners in Bhairon Singh v. Sawai Madhopur Via Tonk Zilla Dugdh Utpadak Sahakari Sangh Ltd. (supra) this question was dealt with by a Division Bench of this Court and it has been laid down that even if the order of appointment be illegal or void in law still before termination of services an opportunity of being heard should be given to the employee. In that case, certain appointment were given to the petitioners and the appointment was challenged on the ground that the appointment was unauthorised and without authority of the Board and that the petitioners were not qualified to be appointed. The termination of the services of the petitioners in that case was challenged and the Court observed as follows:

“Regarding the submission of Shri Singhvi that the appointment was unauthorised or without any authority of the Board, or that the petitioners were not qualified to be appointed are the subject-matter which could be decided after giving an opportunity to the petitioners of being heard. Therefore we are of the opinion that the impugned order of termination dated 31st January, 1987 was arbitrary and violative of principles of natural justice and was, thus, void.”

9. While expressing the opinion, this Court had placed reliance on Olga Tellis v. Bombay Municipal Corporation (4), wherein it was observed that first rule of natural justice is “no man shall be a judge in his own cause” and second rule is “hear the other side” and a corollary has been deducted from the above two rules and that is ‘justice should not only be done but should manifestly be seem to be done’. The audi alteram partem rule made in its full amplitude means that a person be informed of the allegations against him, he be given an opportunity to submit his explanation.

10. In view of the clear authority of this Court in Bhairon Singh's case (supra) the submission made by Shri G.P Sharma are without any substance. The principles of audi alteram partem is a basic principle of natural justice No one should be condemned without hearing is the essence of justice and the Courts of Law apply this principle to ensure a fair play and justice in judicial and quasi-judicial matters. It is also true that there may be certain circumstances in which hearing cannot be possible as pointed out by the Hon'ble Supreme Court in Union of India v. Tulsi Ram Patel (5) in the following words:

“So far as the audi alteram partem rule is concerned, both in England and in India, it is well established that where a right to prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action such a right can be excluded. This right can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Menka Gandhi's case (1978 (2) SCR 621)”.

11. But those exceptional circumstances as pointed out by Hon'ble Supreme Court in Union of India v. Tulsi Ram Patel (supra) are not present in this case. The respondents had sufficient time to serve a show cause and for giving an opportunity of being heard before terminating the services of the petitioners. The question whether the appointment was in breach of the procedure provided in the Rules and was void, could be decided in an inquiry after giving an opportunity of being heard to the petitioners. In the writ jurisdiction where facts are seriously disputed it is not possible to arrive at a finding whether the appointment was illegal or void as contended by the respondents.

12. Before parting with the judgment we would also like to discuss the authorities referred to by Shri Sharma learned counsel of the respondent No. 3. In Sang Singh v. Municipal Board, Pokaran (supra) a learned Single Judge of this Court held that if the order of appointment is illegal, the Court while exercising equitable jurisdiction would not compel the respondents to continue a ‘usurper’ in office in future as it would amount perpetuating illegality. We have gone through the judgment and we do not find that in that case plea was raised that termination of the service was in flagrant disregard of the principles of natural justice. The case before the Court was that the termination amounted to retrenchment and as the conditions of retrenchment having not been complied with the termination was illegal, and the Court held that even if the termination was violative of section 25F of the Industrial Disputes Act, yet the fundamental and basic question for consideration was whether when the appointment of an ex-service man as U.D.C was per se illegal, this Court under Article 226 of the Constitution of India should issue such directions which would result in perpetuating illegality and compelling the respondents to continue the illegality in future also and the Court answered it in negative. In that case on facts it was held that the appointment was illegal. Thus, this case is easily distinguishable. In Jagan Singh v. State Transport Appellate Tribunal, Rajasthan (supra) the proposition of law laid down by this Court was that where allowing the writ petition would result in restoring the illegal order, the High Court would refuse to interfere if there is no failure of justice. Thus, this case is also not applicable in the facts and circumstances of the case. Coming to the case of Rita Mishra v. Director, Primary Education, Bihar, (supra) on which much stress has been laid, we are of the opinion that this authority also does not support the petitioners. It was a case where the public servants filed a writ of mandamus for payment of salary for the work done despite the fact that their letter of appointment was forged, fraudulent or an illegal one. The Full Bench of the Patna High Court after elaborate discussions held that the claim for mandamus on behalf of the petitioners for salary alone cannot possibly be sustained and the petitioners were directed to avail the ordinary remedy by way of civil suit if so advised. In that case the Court on facts held that none of the petitioners was eligible for appointment as the basic qualifications for appointment as teacher was trained Matric/Graduate/IA but none of the petitioners was trained Consequently, the Court observed that the petitioners were ineligible for not possessing the basic qualifications for the post. Thus the case of Rita Mishra stands on its own facts and in no way it helps the petitioners.

13. While repelling the contentions of Shri Singhvi that no notice need be given because there was no effective answer to it. In Bhairon Singh's case, this Court observed that such a contention stands on mis-understanding of rule of hearing which is an important element of principles of natural justice and observed that the decision to dispense with notice cannot be founded upon a presumed impregnability of the proposed action. In our opinion this case is fully covered by the proposition of law laid down by this Court in Bhairon Singh's case.

14. In the pursuance of aforesaid facts we allow the writ petitions and quash the impugned order dated 10th May, 1988. The petitioners have been allowed to continue on the post by order of this Court dated 21-5-1988 and we hereby confirm it. These petitioners will be allowed to continue on the post till their sendees are terminated in accordance with law. However, they would not be entitled to arrears of salary from 10-6-1987 till they have joined services in pursuance of the order of this court dated 21-5-1988. In case the termination order is passed in accordance with fair procedure, after arriving at the conclusion that appointments were illegal and obtained by fraudulent means, the respondents shall be entitled to recover the amount of salary paid to the petitioners with effect from the date of joining after the order of this Court dated 21-5-1988. In case, any one of the petitioners voluntarily tenders his resignation within one month of this order, no action shall be taken against him. Looking to the allegations made in the case against the then Chief Medical and Health Officer Jhunj-hunu we direct that the State Government shall get the matter investigated and, on the basis of the report shall take appropriate action against the officers concerned and the petitioners. In the facts and circumstances of the case, the parties are left to bear their own costs.