The court affirmed that an appointment made in violation of recruitment rules is void ab initio, and principles of natural justice do not apply when cancellation is based on undisputed facts.

JUDGMENT :

(A.S. SUPEHIA, J.)

1. With the consent of the learned advocates appearing on behalf of the respective parties, the Letters Patent Appeal is taken up for final hearing today. ADMIT. Learned advocate Mr.K.B. Pujara, waives service of admission on behalf of the respondent.

2. The present appeal is directed against the judgment and order dated 17.12.2024 passed by the learned Single Judge, whereby, the learned Single Judge while allowing the writ petition, while setting aside the order of termination, has directed the appellants to reinstate the petitioner forthwith as if no order of termination was ever passed. Liberty is also reserved by the learned Single Judge in favour of the appellants to initiate appropriate inquiry proceedings in case they desire.

BRIEF FACTS:

3. The brief facts, which are established from the record, are that the State authority issued an advertisement dated 20.01.2021 through the Gujarat Subordinate Services Selection Board for filling up 18 posts of Havaldar Instructor, Class- III in Home Guards Organization, which falls under the State Home Department. The respondent accordingly applied for the said post and after undergoing the selection process, he was placed at Serial No.1 in the merit list. Accordingly, an appointment order dated 05.11.2023 was issued by the Office of the Director General Civil Defence, Commandant General, Home Guards and he was appointed as a Havaldar Instructor, Class-III on a fixed pay of Rs.26,000/- for a period of five years on contractual period with a relaxation inter alia stating that though he is having the LMV license, he would not be driving the Government vehicle for two years since he does not possess two years driving experience.

4. Before the respondent could hold the charge, his appointment order was cancelled by the order dated 08.11.2023 passed by the Office of the Director General Civil Defence and Commandant General Home Guards on the ground that he does not possess the requisite driving experience of two years.

5. Being aggrieved by such action, the respondent filed the captioned writ petition seeking quashing and setting aside of the impugned order of cancellation of his appointment. The learned Single Judge has allowed the writ petition by holding that “Whether the termination order can be said to be stigmatic or not, is not a question raised in the writ petition and the question is that once right is created in favour of an employee and though he is a probationer, whether such order can be recalled by cancelling the order on the ground that he does not possess the qualification once a conscious decision was taken to relax the experience and that also unilaterally ….”. It is held that the authority is supposed to hold either summary inquiry or full fledged inquiry before terminating the service of the petitioner. Ultimately, the learned Single Judge, by treating the cancellation of appointment as termination of service and also his contractual appointment for a period of five years on fixed pay as probation, has set aside the order of termination and directed the appellants to reinstate the petitioner in service reserving liberty in favour of the appellants to hold appropriate inquiry proceedings.

SUBMISSIONS ON BEHALF OF THE APPELLANT-STATE:

6. Learned Government Pleader Mr. Virk, at the outset, has submitted that when the State authority realized that the order is de hors the provision of law and Rules and also condition of the advertisement, a conscious decision was taken by the authority to cancel the appointment of the respondent. He has referred to the provisions of the Gujarat Civil Services (Classification and Recruitment (General)) Rules, 1967 and has submitted that there is no condition of providing any relaxation, except the age relaxation, and once there is a condition incorporated in the advertisement with regard to the possession of experience by a candidate of two years of driving after possessing the valid driving license, no relaxation was