O.P Sharma, J.:— Petitioner 1 to 4 were appointed junior Assistants by the Executive Officer, Srinagar Municipality by his order dated 1-9-1995. On the same day, he also appointed petitioners 5 to 8 as Class IV employees in the Srinagar Municipality. All he petitioners, it is admitted were removed from service by the respondents vide Order No. 1078 of 1995 dated 15-12-1995.

2. Petitioners challenge the order of termination on the ground of being violative of Articles 14 and 16 of the Constitution as also provisions of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 because they were not heard before passing the impugned order, thereby violating the rules of natural justice. Since the order impugned according to the petitioners is violative of rules of natural justice, it is prayed that they be deemed to be service and entitled to the pay and emoluments of the posts on which they were appointed.

3. Respondents while controverting averments made in the petition have maintained that the appointment of petitioners being void because the Executive Officer of the Municipality was not empowered to make such appointments, the order of their removal is legally valid because a void order of appointment did not create any right in them. Mr. Altaf Haqani, learned Advocate appearing for the petitioners argued that under Section 52 of the Municipal Act, Executive Officer is empowered to make appointments and therefore, petitioners were validly appointed and they could he removed from service only in accordance with law. He also submitted that petitioners having discharged the duty of the post on which they were appointed and paid the salary for the period they worked, they could be removed from service only by observing the rules of natural justice. Since the petitioners were not given any show cause notice, it is argued, the order of termination is void and they are deemed to be i??? service and salary of the post is also payable to them.

4. Mr. Manzoor on the other hand submitted that the Executive Officer had not authority to appoint the petitioners as it is only the Municipal Council and in its absence, the Administrator who is empowered to make such appointments. He also pointed out that even the appointing authority has no power to make appointments without inviting applications from all the eligible candidates and since petitioners were appointed without inviting such applications and holding any test or interview, their appointments are void being in contravention of Articles 14 an 16 of the Constitution of India.

5. The short point involved for consideration is (i) whether the Executive Officer of the Municipality is competent to appoint the petitioners; and (ii) whether the appointments of the petitioners were made after inviting applications from the eligible candidates. Section 52 of the Municipal Act reads as follows:—

“52. Appointment of other officers and servants.- Subject to the provisions of this Act the Council may appoint such other officers and servants as are necessary for the efficient carrying out of the purposes of this Act and may assign to them duties and pay them such salaries and allowances as it may determine from time to time…………….”

6. So it is only the Municipal Council who could appoint the petitioner and when the Council is not existing, it is the Administrator who is empowered to make appointments.

7. As the Executive Officer was not competent the appointment orders of the petitioners were void and do not confer any right on the petitioners. When such is the case, the question arises whether rules of natural justice are required to be followed. According to Mr. Haqani, the point is covered by the judgment of the Apex Court, 1991 Supp (1) SCC 330 : AIR 1991 SC 309, whereas the contention of Mr. Manzoor is that the judgment has no application to the facts of the case which are entirely different as the appointments have been made by a person not authorised by law, which was not so in that case. Shrawan Kumar's case, 1991 Supp (1) SCC 330 : AIR 1991 SC 309 : [1992 (6) SLR 718 (SC)], was, however decided in the peculiar facts and circumstances of the case as is evident from para 3 of the judgment relevant portion of which is extracted below:

“……………It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well-settled that no order to the detriment of the appellant could be passed without complying with Page: 566the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1998 on this short ground. As suggested by the learned Solicitor General, we direct that the Secretary (Education), Government of Bihar or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers………….”

8. Since the facts do not indicate that the appellants were not validly appointed, their right of prior notice was upheld. But in Union of India v. Anand Kumar Pandey, (1994) 5 SCC 663 : AIR 1995 SC 388 : [1994 (4) SLR 486 (SC)], it has been pointed out that:

“…………This Court has repeatedly held that the rules of natural justice cannot be put to a straight-jacket. Applicability of these rules depends upon the facts and circumstances relating to each particular given situation……….”

9. The case of Shrawan Kumar Jha, 1991 Lab IC 1317 (SC) has been decided by applying the principle without laying down the general proposition of law. This has been reiterated in Ashwani Kumar v. State of Bihar, (1996) 7 SCC 577 : AIR 1996 SC 2833 : [1996 (7) SLR 15 (SC)], which reads:

“…………. Courts have to examine in each case the balance of fairness, whether the violation of the principles of audi alteram partem visits with irremediable civil consequences and its incursion on administration, if action is invalidated. No set rule or standard of universal application can possibly be laid for application to all set of cases. Courts exercise their power of judicial review with circumspection to weigh in balance the fairness of action. Therefore, though the principles of natural justice are omnipervasive in given circumstances their non-application may also advance cause of action to prevent misuse or abuse of power or of the judicial process……………”

10. So the observance of rules of natural justice is not a principle of universal application, but its application depends upon the particular facts and circumstances of each case.

11. In S.L Kapoor v. Jagmohan, (1980) 4 SCC 379 : AIR 1981 SC 136, it was held that:

“……………Whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference when the admitted facts speak for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non-observance of natural justice but because Courts do not issue futile writs.”

12. Since it is admitted that the appointments were made by the Executive Officer who in view of the mandate of Section 52 of the Municipal Act was not competent to make such appointments, the result would not be different, even if rules of natural justice are observed. Since the orders impugned are void, the question is what consequences follow therefrom. This question came up for consideration before a Full Bench of Patna High Court in Rita Misra v. State of Bihar, AIR 1988 Pat 26 : [1988 (3) SLR 130 (Patna)], wherein it was held that:

“This stand has only to be noticed to be rejected. Undoubtedly the burden must lie on the petitioners and it is they who have to establish their claim on the basis of a valid appointment and not for the respondent-State to prove the negative. The claim of a fulldress inquiry after associating the petitioners in a writ Page: 567of mandamus is plainly ill-founded and does not lie in the mouth of the petitioners. On principle and even on the basis of precedent on which reliance was placed by the petitioners too, it is wholly settled that where the very original appointment to the service is invalid or forged or fraudulent then in the eye of law there is no appointment at all and declaration by the State that the alleged appointment is non est does not attract any principle of natural justice. It is unnecessary to elaborate this on principle because it is covered by the observation of the Full bench in the aforementioned case of Bijoy Kumar Bharti, 1983 Lab IC 1884 (Pat) (supra). Therein S. Sarwa Ali, acting C.J observed—

“No one has a right to be appointed irregularly. His position is that of a person who has no right to the post. There is no stigma attached in the removal ………… do not think therefore, that in such a situation there is anything unfair in taking the decision without hearing the person likely to be affected.”

13. In his concurring judgment, N.P Singh, J. observed:

“It cannot be disputed that whenever the service of a person appointed on temporary basis is terminated saying that the appointment in question had been made in an irregular or illegal manner, it does not amount to any stigma or penalty. In my view, such orders cannot be held to be invalid because before passing such orders opportunity to show cause was not given to the person concerned.”

14. Even at the cost of repetition, particular reference is called for afresh to the case of Diwaker Prasad Yadav v. State of Bihar, 1986 Pat LJR 873 (supra), wherein B.P Sinha, J. speaking for the Division Bench held as follows:—

“To sum up I find and hold that the petitioners of these writ applications have not been validly appointed. They cannot challenge the impugned orders on the ground of alleged violation of principles of natural justice. I also hold that they are not entitled to any directions for payment of arrears of their salary for the period they claim to have worked.

It would be manifest from the authoritative findings of the Full Bench and the Division Bench that even in cases of termination of services, the rules of natural justice are not attracted where the original appointment itself is void ab initio. Now once that is so, a fortiori, no question of any rules of natural justice arises merely in the case of refusal of salary in an identical context.”

15. Similarly the Apex Court in Biswa Ranjan Sahoo v. Sushanta Kumar Dinda, (1996) 5 SCC 365 : AIR 1996 SC 2552 : [1996 (5) SLR 172 (SC)] rules as under:—

“…………In a case like mass malpractice as noted by the Tribunal, as extracted hereinbefore, the question emerges, whether me notice was required to be issued to the person affected and whether they needed to be heard? Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the person who are said to have been selected and given selection and appointment. The procedure adopted is in flagrant breach of the rules offending Articles 14 and 16 of the Constitution.”

16. So on the admitted facts of the case, it was not necessary to observe the principle of audi alteram partem in this case as a void order creates no enforceable right.

17. Therefore, the order impugned does not suffer from any infirmity.

18. In view of the above, the petition is dismissed without any order as to costs.

19. Petition dismissed.