Chattisgarh High Court
Rajendra Kumar Sharma vs State Of Chhattisgarh & Others on 12 April, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION No 2538 of 2006
Rajendra Kumar Sharma
...Petitioners
Versus
State of Chhattisgarh & Others
...Respondents
! Shri YC Sharma Advocate for the petitioner
^ Shri VVS Moorthy Dy AG for the Staterespondents
CORAM : Honble Shri Satish K Agnihotri J
Dated : 12/04/2010
: Judgement
ORDER ORAL
Passed on 12th day of April 2010
WRIT PETITION UNDER ARTICLE 226227 OF THE CONSTITUTION OF INDIA
1. Learned counsel appearing for the petitioner submits
that on account of the ill health of the petitioner, the
petitioner working as Surveillance Maleria Inspector, later
on re-designated as Junior Malaria Inspector, on account of
sufferance of acute cervical spondylitis, submitted an
application on 01.01.2003 under the provisions of Rule 42 of
the Chhattisgarh Civil Services (Pension) Rules, 1976 to
grant him voluntary retirement. No order was communicated to
the petitioner. It is presumed that after three months, the
petitioner stood retired voluntarily w.e.f. 31.03.2003.
2. Shri Sharma, learned counsel further submits that
subsequently, by order dated 22.08.2005 (Annexure P/1) the
petitioner was retired from service on attaining the age of
superannuation on 05.10.2005 w.e.f. 31.10.2005. Thereafter,
no steps have been taken for grant of pensionary benefits to
the petitioner. The petitioner was paid only anticipatory
pension. Consequent thereupon, the petitioner made an
application on 7.2.2006 communication was sent by the Chief
Medical & Health Officer, to the Joint Director
(Establishment) Directorate of Health Services, Raipur
wherein it was stated that the application of the petitioner
was not in accordance with law. Thus, the petitioner retired
on attaining the age of superannuation. It was further
submitted that the petitioner may be granted 239 days of
earned leave and 102 days leave without pay. On the above
stated communication, no order has been passed.
3. Shri Moorthy, learned Deputy Advocate General appearing
for the State/respondents submits that it appears that the
file of the petitioners service record has not yet been
finally settled as if the date of the retirement of the
petitioner is taken as 31.03.2005 as voluntary retirement as
stated by the petitioner, the petitioner ought to have been
given pension on the basis of his voluntary retirement. But
the impugned letter dated 22.08.2005, retires the petitioner
w.e.f. 31.10.2005 on attaining the age of superannuation.
JUDGE
Amit
HIGH COURT OF CHHATTISGARH AT BILASPUR
WRIT PETITION No. 2279 of 2003
PETITIONER : Yogendra Singh Chouhan.
VERSUS
RESPONDENTS : State of Chhattisgarh & Others.
PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
SB: Hon'ble Shri Satish K. Agnihotri, J.
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Present: Shri Anil Pandey, Advocate for the petitioner.
Shri M.P.S.Bhatia, Deputy G.A. for the
State/respondents.
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ORDER (ORAL)
(Passed on 12th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that the petitioner, who was working as Constable in the police department, on a complaint made by one Manjit Singh, departmental enquiry was conducted against the petitioner.
After enquiry, the petitioner was imposed the punishment of compulsory retirement by the Superintendent of Police, Koria on 01.07.2001 (Annexure P/1). Against the said order, the petitioner preferred an appeal before the appellate authority i.e. Inspector General of Police, Surguja Range, however, the same was also rejected vide order dated 17.07.2002 (Annexure P/2). Thereagainst, the petitioner preferred a mercy appeal which was also rejected vide order dated 29.01.2003 (Annexure P/3).
2. Shri Pandey submits that the order passed by the appellate authority is bad in law on account of the fact that the said order is a non-speaking order.
3. It is well settled that if a higher authority affirms the order passed by his subordinate, the same is not required to be dealt again in detail when the subordinate authority has already considered and decided all the issues and passed a reasoned order. In the case on hand, the Superintendent of Police, Koria has considered all the aspects of the matter and has rightly awarded a punishment of compulsory retirement as there were serious allegations against the petitioner.
4. The Supreme Court, in State of U.P. & Others v. Ashok Kumar Singh & another1, observed that a police constable, serving in disciplined force, which demands strict adherence to the rules and procedure more than any other department, in absenting himself from duty without permission, has committed grave misconduct, which has rightly resulted into removal from service.
5. Further, in Commissioner of Police v. Syed Hussain2, the Supreme Court observed that in view of the nature of duties that a protector of law is required to perform, it cannot be said that the disciplinary authority had committed any error imposing the punishment of removal from service upon the respondent, particularly when on several occasions he has been found guilty of misconduct.
6. Even otherwise, the petitioner has filed the annexures which appear to be only the typed copy as it does not bear any signature or seal of any authority. Thus, the genuineness of the same is doubtful. Thus, for want of sufficient materials also, the petition cannot be adjudicated upon.
7. In view of the above, the writ petition is dismissed.
8. No order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1580 of 2010 PETITIONER : Eja Siddh.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri Anup Majumdar, Advocate for the petitioner.
Shri P.K.Bhaduri, Panel Lawyer for the State/respondents.
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ORDER (ORAL) (Passed on 12th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that without affording any opportunity of hearing, a sum of Rs. 32,998/- has been recovered from the retiral dues of the petitioner which is evident from the challan dated 07.03.2008 (Annexure P/2). Shri Majumdar further submits the issue asto whether recovery of excess payment for no fault of the employee can be made without following the principles of natural justice is no longer res integra. The same has been settled by Hon'ble Supreme Court in various decisions (See Syed Abdul Qadir and others v. State of Bihar and others3). This Court, relying on the above decisions has passed several orders, directing refund of the amount, if any, recovered from the employees, where the employees were not given any opportunity to explain about the excess payment, if any, made to them. Shri Majumdar further contends that any recovery from retiral dues can be made only in case if there was any misrepresentation or fraud on the part of the employee and the employee had knowledge that the payment was received in excess. The error, if any, could have been corrected within a short span of time from wrong payment.
2. Shri Bhaduri, learned Panel Lawyer appearing for the State/respondents submits that excess payment was not made on account of any misrepresentation or fraud committed by the petitioner. Admittedly, this was a case of misconstruction of the provisions of wrong fixation of salary. He further submits that the similar order may be passed, subject to verification of facts.
3. This Court, as well as Hon'ble Supreme Court, in a catena of decisions, time and again reiterated that no recovery of excess payment for no fault of the employee can be made without following the principles of natural justice. This Court in Ramchandra Kurup v. State of C.G. & others4 and other connected matters, decided on 23rd November, 2009, observed as under:
"19. A common thread running into the above decisions of the Supreme Court is that, for recovery of excess payment of emoluments/allowances, there are three conditions wherein the excess payment may be recovered, namely (i) excess payment was made on account of misrepresentation or fraud on the part of the employee, (ii) the employee had knowledge that the payment received was in excess, and (iii) the error was corrected within a short span of time of wrong payment...."
4. In view of the foregoing, the respondent authorities are directed to refund back the amount of Rs. 32,998/- to the petitioner. However, liberty is reserved to the State/respondents that if the excess payment has been made on account of misrepresentation or fraud on the part of the employee, or the employee had the knowledge that the payment received by his was in excess, fresh orders may be issued on verification of the facts, after affording opportunity of hearing to the petitioner.
5. The writ petition is accordingly disposed of. No order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1072 of 2007 PETITIONER : South Eastern Coalfields Ltd.
VERSUS RESPONDENTS : The Appellate Authority & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri P.S.Koshy, Advocate for the petitioner.
Shri Gary Mukhopadhyay, Advocate for the respondent No. 3.
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ORDER (ORAL) (Passed on 12th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that the amount of gratuity could not be paid to the respondent No. 3 pursuant to the pending departmental enquiry. However, on the direction of the Controlling Authority dated 27.03.2006 (Annexure P/2), which was communicated to the petitioner on 25.04.2006, the petitioner was directed to pay the amount of gratuity to the respondent No. 3. Thereagainst, the petitioner, after depositing the amount of gratuity with the Appellate Authority, preferred an appeal before the Appellate Authority under the Payment of Gratuity Act, 1972. The same was also dismissed on 7.11.2006 (Annexure P/1). In the meantime, the departmental enquiry was concluded and resulted into imposition of `censure'. In view of imposition of `censure', the gratuity amount cannot be withheld, which the respondent No. 3 is entitled to. In view of foregoing, nothing survives for adjudication in this matter.
2. Learned counsel appearing for the respondent No. 3 concurs with the above stated facts and prays for leave to make an application before the Appellate Authority for withdrawal of the gratuity amount.
3. For the reasons mentioned hereinabove, the writ petition is disposed of reserving liberty to the respondent No. 3 to make appropriate application for withdrawal of the gratuity amount, if so advised, before the Appellate Authority, wherein the gratuity amount is lying.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1602 of 2010 PETITIONER : Siddhnath Sharma.
VERSUS RESPONDENTS : The State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri A.K.Prasad, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State.
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ORDER (ORAL) (Passed on 12th day of April, 2010)
1. Learned counsel appearing for the petitioner, on instructions, seeks permission of this court to withdraw this petition with liberty to make a representation to the Pension Committee wherein the case of the petitioner is pending consideration.
2. It is ordered accordingly.
3. Consequently, the writ petition is dismissed as withdrawn with the aforestated liberty, if so advised.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1598 of 2010 PETITIONER : Nain Das Gaikwad.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri Sanjay Patel, Advocate for the petitioner.
Shri M.P.S.Bhatia, Deputy G.A. for the State.
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ORDER (ORAL) (Passed on 12th day of April, 2010)
1. Learned counsel appearing for the petitioner, on instructions, seeks permission of this Court to withdraw this petition, with liberty to file a better petition.
2. It is ordered accordingly.
3. Consequently, the writ petition is dismissed as withdrawn with the aforestated liberty, if so advised.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION ( ) No. PETITIONER :
VERSUS RESPONDENTS :
WRIT PETITION UNDER ARTICLE SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: -----------------------------------
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ORDER (ORAL)
(Passed on day of April, 2010)
JUDGE
Amit
HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 2748 of 2005 PETITIONER : Dr. R.S.Bhadauria.
VERSUS RESPONDENTS : Government of M.P. & Others.
ORIGINAL APPLICATION UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNAL ACT.
SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri T.K.Tiwari, Advocate for the petitioner.
Shri Chandresh Shrivastava, Panel Lawyer for the State.
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ORDER (ORAL) (Passed on 12th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that on account of subsequent development, this petition has become infructuous and as such, the petitioner may be permitted to withdraw this petition with liberty to challenge the subsequent development.
2. Learned counsel appearing for other side has no objection.
3. It is ordered accordingly.
4. Consequently, the writ petition is dismissed as withdrawn with the aforestated liberty, if so advised.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 651 of 2007 PETITIONER : Jaiprakash Jaiswal.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: None for the petitioner.
Shri P.K.Bhaduri, Panel Lawyer for the State.
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ORDER (ORAL) (Passed on 12th day of April, 2010)
1. The matter is called for hearing twice. None appears nor any representation is made on behalf of the petitioner.
The petitioner may not be interested in pursuing the matter.
2. In view of the above, the matter is dismissed for want of prosecution.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 4461 of 2009 PETITIONER : Ram Kumar Ratre & others.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------------- Present: Shri Jitendra Pali, Advocate for the petitioners.
Shri V.V.S.Moorthy, Deputy Advocate General with Shri M.P.S.Bhatia, Deputy Government Advocate and Shri A.V.Shridhar, Panel Lawyer for the State/respondents.
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ORDER (ORAL) (Passed on 09th day of April, 2010)
1. By this petition, the petitioners seek a direction to the respondent No. 3 to consider the petitioners for selection in Patwari Training School.
2. Learned counsel appearing for the petitioners submits that pursuant to the advertisement dated 13.08.2008 (Annexure P/3), the petitioners applied for selection and appointment on the post of Patwari. A written examination was conducted on 21.09.2008 by the Chhattisgarh Professional Examination Board and the result was declared thereof. Thereafter, counselling was conducted on 15.12.2008 but the petitioners' candidature was denied on the ground that they were not in possession of one year computer application (diploma) certificate from a recognized institution.
3. Shri Pali further submits that the petitioners are in possession of computer diploma certificate from the institutions recognized by the Government of Chhattisgarh. Even if it is assumed that the petitioners do not have requisite qualification of computer application (diploma) certificate, even then the respondent authorities ought to have considered the candidature of the petitioners as in the advertisement itself, it was clearly provided that the Patwaris who are selected for appointment in the Scheduled Areas, they shall have a period of one year to acquire the said certificate. However, ignoring the same, the respondent authorities have denied the candidature of the petitioners. Further, the Department of Revenue and Disaster Management, Raipur, regulating the service conditions of the Patwaris, by circular dated 21.07.2008 provides for the same qualification as published in the advertisement. Clause 6 of the said circular reads as under:
"mEehnokjksa dks `kkldh; vFkok v/kZ'kkldh; ;k Hkkjr ljdkj vFkok jkT; ljdkj ls ekU;rk izkIr laLFkk ls dEi;wVj ,Iyhds'ku vgrkZ ,fMIyksek+ vfuok;Z gksxkA jkT; ds vuqlwfpr {ks= ds iVokjh izf'k{k.k gsrq p;fur mEehnokjksa dks ,d o"kZ ds vUnj dEI;wVj ,Iyhds'ku vgZrk ,fMIyksek+ izkIr djuk vfuok;Z gksxkA"
4. Shri Pali further submits that this Hon'ble Court has already dealt with the aforeasaid provisions in Santosh Kumar Vishwakarma v. State of Chhattisgarh & another5 and other connected matters.
5. Learned counsel appearing for the State/respondents submits that the petitioners do not belong to Scheduled Areas, therefore they were required to possess one year computer diploma certificate from the recognized institutes, which in fact, the petitioners do not have. Their diploma certificates are not from any recognized institutes as required under circular dated 7th June, 2007 (Annexure R/1). Thus, their candidature has rightly been rejected and they may not be entitled to the benefit of clause (v)(5) of the advertisement dated 13.08.2008.
6. The issue with regard to the term `affiliation' and `recognition' has also been considered and decided by this Court in the matter of Santosh Kumar Vishwakarma (supra), wherein this Court, relying on a decision of Supreme Court in The Principal & Others v. the Presiding Officer and others6, observed that there is a difference between `affiliation' and `recognition'. `Affiliation' is only for the purpose of preparing and presenting the students for examination and `recognition' is a confirmation that an act done by the other authority was authorised.
7. It appears that the petitioners have not obtained the essential qualification i.e. computer application (diploma) certificate from the institutes which are recognized either by the Government/Semi Government/Government of India or the State Government, the recognition taken by the aforesaid institutes from other departments cannot be held as recognition as the recognition must be as per the circular dated 7th June, 2007 (Annexure R/1).
8. Further, on bare perusal of clause (Annexure P/3), clause 6 of the circular dated 21.07.2008 and Rule 3(4) of the Chhattisgarh Land Records Manual, which is clear and unambiguous, provides that the candidate selected for Patwari Training in the Scheduled Area would be required to obtain computer application (diploma) certificate within a period of one year. The criteria is that the candidate should be selected for training in the Scheduled Area and not that the candidate should belong to Scheduled Area. In the instant case, admittedly, the petitioners are selected for Patwari Training in the Scheduled Area i.e. for District Jashpur and they may acquire the requisite qualification of computer application (diploma) certificate within a period of one year and their candidature cannot be rejected on this count that their computer diploma certificate is not from any recognized institute. Thus, the contention of respondent- State is unsustainable.
9. In view of the above, the respondent authorities are directed to prepare a fresh merit list and consider the candidature of the petitioners for selection in Patwari Training School, subject to verification of the facts that the petitioners acquire all other requisite qualifications, except computer application (diploma) certificate from a recognized institute as provided under circular dated 7.6.2007 (Annexure R/1).
10. Resultantly, the writ petition is allowed. No order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 4550 of 2009 PETITIONER : Chanchal Kumar & another.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------------- Present: Shri Jitendra Pali, Advocate for the petitioners.
Shri V.V.S.Moorthy, Deputy Advocate General with Shri M.P.S.Bhatia, Deputy Government Advocate and Shri A.V.Shridhar, Panel Lawyer for the State/respondents.
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ORDER (ORAL) (Passed on 09th day of April, 2010)
11. By this petition, the petitioners seek a direction to the respondent No. 3 to consider the petitioners for selection in Patwari Training School.
12. Learned counsel appearing for the petitioners submits that pursuant to the advertisement dated 13.08.2008 (Annexure P/3), the petitioners applied for selection and appointment on the post of Patwari. A written examination was conducted on 15.12.2008 by the Chhattisgarh Professional Examination Board and the result was declared thereof. Thereafter, counselling was conducted on 26.6.2009 but the petitioners' candidature was denied on the ground that they were not in possession of one year computer application (diploma) certificate from a recognized institution.
13. Shri Pali further submits that the petitioners are in possession of computer diploma certificate from the institutions recognized by the Government of Chhattisgarh. Even if it is assumed that the petitioners do not have requisite qualification of computer application (diploma) certificate, even then the respondent authorities ought to have considered the candidature of the petitioners as in the advertisement itself, it was clearly provided that the Patwaris who are selected for appointment in the Scheduled Areas, they shall have a period of one year to acquire the said certificate. However, ignoring the same, the respondent authorities have denied the candidature of the petitioners. Further, the Department of Revenue and Disaster Management, Raipur, regulating the service conditions of the Patwaris, by circular dated 21.07.2008 provides for the same qualification as published in the advertisement. Clause 6 of the said circular reads as under:
"mEehnokjksa dks `kkldh; vFkok v/kZ'kkldh; ;k Hkkjr ljdkj vFkok jkT; ljdkj ls ekU;rk izkIr laLFkk ls dEi;wVj ,Iyhds'ku vgrkZ ,fMIyksek+ vfuok;Z gksxkA jkT; ds vuqlwfpr {ks= ds iVokjh izf'k{k.k gsrq p;fur mEehnokjksa dks ,d o"kZ ds vUnj dEI;wVj ,Iyhds'ku vgZrk ,fMIyksek+ izkIr djuk vfuok;Z gksxkA"
14. Shri Pali further submits that this Hon'ble Court has already dealt with the aforeasaid provisions in Santosh Kumar Vishwakarma v. State of Chhattisgarh & another7 and other connected matters.
15. Learned counsel appearing for the State/respondents submits that the petitioners do not belong to Scheduled Areas, therefore they were required to possess one year computer diploma certificate from the recognized institutes, which in fact, the petitioners do not have. Their diploma certificates are not from any recognized institutes as required under circular dated 7th June, 2007 (Annexure R/2). Thus, their candidature has rightly been rejected and they may not be entitled to the benefit of clause (v)(5) of the advertisement dated 13.08.2008.
16. The issue with regard to the term `affiliation' and `recognition' has also been considered and decided by this Court in the matter of Santosh Kumar Vishwakarma (supra), wherein this Court, relying on a decision of Supreme Court in The Principal & Others v. the Presiding Officer and others8, observed that there is a difference between `affiliation' and `recognition'. `Affiliation' is only for the purpose of preparing and presenting the students for examination and `recognition' is a confirmation that an act done by the other authority was authorised.
17. It appears that the petitioners have not obtained the essential qualification i.e. computer application (diploma) certificate from the institutes which are recognized either by the Government/Semi Government/Government of India or the State Government, the recognition taken by the aforesaid institutes from other departments cannot be held as recognition as the recognition must be as per the circular dated 7th June, 2007 (Annexure R/2).
18. Further, on bare perusal of clause (Annexure P/3), clause 6 of the circular dated 21.07.2008 and Rule 3(4) of the Chhattisgarh Land Records Manual, which is clear and unambiguous, provides that the candidate selected for Patwari Training in the Scheduled Area would be required to obtain computer application (diploma) certificate within a period of one year. The criteria is that the candidate should be selected for training in the Scheduled Area and not that the candidate should belong to Scheduled Area. In the instant case, admittedly, the petitioners are selected for Patwari Training in the Scheduled Area i.e. for District Surguja and they may acquire the requisite qualification of computer application (diploma) certificate within a period of one year and their candidature cannot be rejected on this count that their computer diploma certificate is not from any recognized institute. Thus, the contention of respondent-
State is unsustainable.
19. In view of the above, the respondent authorities are directed to prepare a fresh merit list and consider the candidature of the petitioners for selection in Patwari Training School, subject to verification of the facts that the petitioners acquire all other requisite qualifications, except computer application (diploma) certificate from a recognized institute as provided under circular dated 7.6.2007 (Annexure R/2).
20. Resultantly, the writ petition is allowed. No order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 67 of 2010 PETITIONER : Smt. Leelamma.
VERSUS RESPONDENTS : State of C.G. & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri K.R.Nair, Advocate for the petitioner.
Shri M.P.S.Bhatia, Deputy Government Advocate for the State/respondents.
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ORDER (ORAL) (Passed on 06th day of April, 2010)
1. By this petition, the petitioner seeks a writ/direction to the respondents to fix his pay as per revised pay scale of Rs. 9300/- to 34,300/-and further, compute hes retiral dues and pensionary benefits accordingly on the basis of higher pay scale.
2. The indisputable facts, in brief, as projected by the petitioner are that the petitioner was appointed as Second Grade Clerk (Asst. Gr. III) in the respondent Public Works Department on 07.11.1975 in the pay of Rs. 169/- p.m.. Thereafter, she was promoted to the post of First Grade Clerk in the pay scale of Rs. 575/- to 880/- on 26.05.1986. The said pay scale was subsequently revised to Rs. 4000- 6000/-. Since the petitioner was not granted any regular promotion, after completion of 12 years of service, the petitioner was entitled to Kramonnati in accordance with the stagnation promotion scheme. After completion of 12 years of service the petitioner was granted benefit of Karamonnati vide order dated 10.09.2001 (Annexure P/3) w.e.f. 19.04.1999. Thereafter, the petitioner was entitled for grant of benefit of second Kramonnati on completion of 24 years of service. However, in the meantime, the respondents have amended the earlier Kramonnati policy by reducing the service period of 12 years and 24 years to 10 years and 20 years respectively which is evident from the order dated 28.04.2008 (Annexure P/4). The petitioner made a representation to the respondent authorities that the petitioner had completed 10 years of service after the first Kramonnati was granted, the petitioner is eligible for grant of second Kramonnati w.e.f. 1st April, 2006. The petitioner was accordingly granted the benefit of second Kramonnati vide order dated 09.07.2009 w.e.f. 1st April, 2006. The same was sent for fixing the next higher pay scale of the petitioner to the respondent No. 3. However, the same was not approved by the respondent No. 3.
3. Shri Nair, learned counsel appearing for the petitioner submits that the remark of the respondent No. 3 at the top of Annexure P/5 "osrueku 5000 izkIr ugha gksxk" is without any rhyme or reason. The same deserves to be considered and the respondent No. 3 may be directed to give effect to the order dated 09.07.2009 (Annexure P/1).
4. On the other hand, Shri Bhatia, learned Deputy Government Advocate appearing for the State/respondents submits that the petitioner is not entitled to any relief under the memo dated 28.04.2008 (Annexure P/4) as the same is applicable to only those employees who have been appointed or promoted in the cadre where the appointment is made by direct recruitment.
5. Having considered the rival contentions of learned counsel for the parties, perusal of the pleadings and documents appended thereto, on perusal of the memo dated 28.04.2008 (Annexure P/4), it appears that all the employees whether they are recruited directly and thereafter promoted or they have been selected and appointed under departmental rules, are entitled to the benefit of memo dated 28.04.2008. It is beneficial to quote para 3 and 4 of memo dated 28.04.2008 (Annexure P/4) which reads as under:
"3- bl ;kstuk ds varxZr flfoy lsok ds ftu laoxksZa esa lh/kh HkrhZ gksrh gS] muesa "v" rFkk "c" oxZ ds flfoy lsokvksa ds lnl;ksa dks mpprj osrueku dk YkkHk lsok esa fu;qfDr ds Ik'pkr 8 o"kZ dh lsok vof/k iw.kZ gksus ij rFkk "l" oxZ dh flfoy lsok ds lnL;ksa dks lsok esa fu;qfDr ds Ik'pkr 10 o"kZ dh lsok vof/k iw.kZ gksus ij miyC/k gksxkA `lh/kh HkrhZ ds inksa@lsok esa fu;qfDr' ds rkRi;Z foHkkxh; HkrhZ fu;e ds vuqlkj lh/kh HkRkhZ gsrq fu/kkZfjr laoxZ esa lohd`r inksa ij yksd lsok vk;ksx ds ek/;e ls] foHkkxh; HkrhZ fu;e ds vuqlkj p;u@izfr;ksxh ijh{kk }kjk] ,slh lfefr foHkkxh; p;u ijh{kk }kjk ftlesa lHkh foHkkx ds deZpkjh `kkfey gks ldrs gS vFkok laoxhZ; inksUufr }kjk fu;qfDr ls gSA 4- bl ;kstuk ds varXkZr fu/kkZfjr `krksZa ds v/khu mPprj osrueku dh ik=rk mu `kkldh; lsodksa dks Hkh gksxh ftUgsa izkjafHkd fu;qfDr ds in ls ,d] nks vFkok nks ls vf/kd inksUufr dk ykHk izkIr gks pqdk gSA"
6. The State Government subsequently, by memo dated 10.08.2009 (Annexure P/6), filed by the petitioner, alongwith rejoinder, makes it clear in column No. 2 that other employees who are appointed on promotion under the departmental rules are entitled to the same benefit as granted to the employees who are directly recruited on the post or thereafter promoted.
7. Law is well settled that if a person has either been appointed on the basis of direct recruitment or through any departmental promotion, his period for the purpose of counting 10 years and 20 years shall be counted from the date the employee joins on the promoted post and continues on the same post for a period of 10 years or 20 years, as the case may be. In the present case, the petitioner was granted the benefit of stagnation promotion scheme on completion of 12 years. Thereafter, the second benefit of stagnation promotion scheme was granted on 09.07.2009 w.e.f. 01.04.2006, the date the petitioner completed 10 years of service after grant of first benefit. But the same has been rejected by the respondent No. 3.
8. There is a difficulty in understanding the response of the respondents as a common return has been filed by the respondent No. 1, 2 and 3 wherein, one respondent i.e. the respondent No. 2 has granted the benefit of second Kramonnati after completion of 10 years but the respondent No. 3, has refused the same by writing "5000 izkIr ugha gksxk" in the note sheet (Annexure P/5) without assigning any reason.
9. Shri Nair relies on a decision of the Supreme Court, rendered in State of Tripura v. K.K.Roy9, and judgment and order dated 29.08.2006, passed by this Court in R.S.Verma v. State of Chhattisgarh & Others10, wherein the question for granting benefit of Kramonnati was under consideration.
10. The Hon'ble Supreme Court observed as under:
"7. We are, thus, of the opinion that the respondent herein is at least entitled to grant of two higher grades, one upon expiry of the period of 12 years from the date of his joining of the service and other upon expiry of 24 years thereof."
11. Learned counsel for the State/respondents submits that the decision in the matter of K.K.Roy (supra) and R.S.Verma (supra) are on the same point.
12. The ratio laid down in the aforesaid judgment is applicable to the facts of the instant case even though, in the aforesaid judgment, the petitioner was granted higher grade on expiry of 12 years and 24 years, in the instant case, since the period for consideration of grant of Kramonnati has been amended to 10 years and 20 years vide memo dated 28.04.2008 (Annexure P/4).
13. In view of the foregoing and for the reasons stated hereinabove, the writ petition is allowed. The petitioner shall be entitled to all consequential benefits flowing from this order.
14. No order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 05 of 2010 PETITIONER : B.R.Suryawanshi.
VERSUS RESPONDENTS : State of C.G. & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri K.R.Nair, Advocate for the petitioner.
Shri M.P.S.Bhatia, Deputy Government Advocate for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 06th day of April, 2010)
15. By this petition, the petitioner seeks a writ/direction to the respondents to fix his pay as per revised pay scale of Rs. 9300/- to 34,300/-and further, compute his retiral dues and pensionary benefits accordingly on the basis of higher pay scale.
16. The indisputable facts, in brief, as projected by the petitioner are that the petitioner was appointed as Second Grade Clerk (Asst. Gr. III) in the respondent Public Works Department on 05.04.1972 in the pay scale of Rs. 90-170/-. Thereafter, he was promoted to the post of First Grade Clerk in the pay scale of Rs. 1150-1800/- on 30.07.1986. The said pay scale was subsequently revised to Rs. 4000-6000/-. Since the petitioner was not granted any regular promotion, after completion of 12 years of service, the petitioner was entitled to Kramonnati in accordance with the stagnation promotion scheme. After completion of 12 years of service the petitioner was granted benefit of Karamonnati vide order dated 19.09.2001 (Annexure P/3) w.e.f. 19.04.1999. Thereafter, the petitioner was entitled for grant of benefit of second Kramonnati on completion of 24 years of service. However, in the meantime, the respondents have amended the earlier Kramonnati policy by reducing the service period of 12 years and 24 years to 10 years and 20 years respectively which is evident from the order dated 28.04.2008 (Annexure P/4). The petitioner made a representation to the respondent authorities that the petitioner had completed 10 years of service after the first Kramonnati was granted, the petitioner is eligible for grant of second Kramonnati w.e.f. 1st April, 2006. The petitioner was accordingly granted the benefit of second Kramonnati vide order dated 09.07.2009 w.e.f. 1st April, 2006. The same was sent for fixing the next higher pay scale of the petitioner to the respondent No. 3. However, the same was not approved by the respondent No. 3.
17. Shri Nair, learned counsel appearing for the petitioner submits that the remark of the respondent No. 3 at the top of Annexure P/5 "5000 izkIr ugha gksxk" is without any rhyme or reason. The same deserves to be considered and the respondent No. 3 may be directed to give effect to the order dated 09.07.2009 (Annexure P/1).
18. On the other hand, Shri Bhatia, learned Deputy Government Advocate appearing for the State/respondents submits that the petitioner is not entitled to any relief under the memo dated 28.04.2008 (Annexure P/4) as the same is applicable to only those employees who have been appointed or promoted in the cadre where the appointment is made by direct recruitment.
19. Having considered the rival contentions of learned counsel for the parties, perusal of the pleadings and documents appended thereto, on perusal of the memo dated 28.04.2008 (Annexure P/4), it appears that all the employees whether they are recruited directly and thereafter promoted or they have been selected and appointed under departmental rules, are entitled to the benefit of memo dated 28.04.2008. It is beneficial to quote para 3 and 4 of memo dated 28.04.2008 (Annexure P/4) which reads as under:
"3- bl ;kstuk ds varxZr flfoy lsok ds ftu laoxksZa esa lh/kh HkrhZ gksrh gS] muesa "v" rFkk "c" oxZ ds flfoy lsokvksa ds lnl;ksa dks mpprj osrueku dk YkkHk lsok esa fu;qfDr ds Ik'pkr 8 o"kZ dh lsok vof/k iw.kZ gksus ij rFkk "l" oxZ dh flfoy lsok ds lnL;ksa dks lsok esa fu;qfDr ds Ik'pkr 10 o"kZ dh lsok vof/k iw.kZ gksus ij miyC/k gksxkA `lh/kh HkrhZ ds inksa@lsok esa fu;qfDr' ds rkRi;Z foHkkxh; HkrhZ fu;e ds vuqlkj lh/kh HkRkhZ gsrq fu/kkZfjr laoxZ esa lohd`r inksa ij yksd lsok vk;ksx ds ek/;e ls] foHkkxh; HkrhZ fu;e ds vuqlkj p;u@izfr;ksxh ijh{kk }kjk] ,slh lfefr foHkkxh; p;u ijh{kk }kjk ftlesa lHkh foHkkx ds deZpkjh `kkfey gks ldrs gS vFkok laoxhZ; inksUufr }kjk fu;qfDr ls gSA 4- bl ;kstuk ds varXkZr fu/kkZfjr `krksZa ds v/khu mPprj osrueku dh ik=rk mu `kkldh; lsodksa dks Hkh gksxh ftUgsa izkjafHkd fu;qfDr ds in ls ,d] nks vFkok nks ls vf/kd inksUufr dk ykHk izkIr gks pqdk gSA"
20. The State Government subsequently, by memo dated 10.08.2009 (Annexure P/6), filed by the petitioner, alongwith rejoinder, makes it clear in column No. 2 that other employees who are appointed on promotion under the departmental rules are entitled to the same benefit as granted to the employees who are directly recruited on the post or thereafter promoted.
21. Law is well settled that if a person has been either promoted on the basis of direct recruitment or through any departmental promotion, his period for the purpose of counting 10 years and 20 years shall be counted from the date the employee joins on the promoted post and continues on the same post for a period of 10 years or 20 years, as the case may be. In the present case, the petitioner was granted the benefit of stagnation promotion scheme on completion of 12 years. Thereafter, the second benefit of stagnation promotion scheme was granted on 09.07.2009 w.e.f. 01.04.2006, the date the petitioner completed 10 years of service after grant of first benefit. But the same has been rejected by the respondent No. 3.
22. There is a difficulty in understanding the response of the respondents as a common return has been filed by the respondent No. 1, 2 and 3 wherein, one respondent i.e. the respondent No. 2 has granted the benefit of second Kramonnati after completion of 10 years but the respondent No. 3, has refused the same by writing "5000 izkIr ugha gksxk" in the note sheet (Annexure P/5) without assigning any reason.
23. Shri Nair relies on a decision of the Supreme Court, rendered in State of Tripura v. K.K.Roy11, and judgment and order dated 29.08.2006, passed by this Court in R.S.Verma v. State of Chhattisgarh & Others12, wherein the question for granting benefit of Kramonnati was under consideration.
24. The Hon'ble Supreme Court observed as under:
"7. We are, thus, of the opinion that the respondent herein is at least entitled to grant of two higher grades, one upon expiry of the period of 12 years from the date of his joining of the service and other upon expiry of 24 years thereof."
25. Learned counsel for the State/respondents submits that the decision in the matter of K.K.Roy (supra) and R.S.Verma (supra) are on the same point.
26. The ratio laid down in the aforesaid judgment is applicable to the facts of the instant case even though, in the aforesaid judgment, the petitioner was granted higher grade on expiry of 12 years and 24 years, in the instant case, since the period for consideration of grant of Kramonnati has been amended to 10 years and 20 years vide memo dated 28.04.2008 (Annexure P/4).
27. In view of the foregoing and for the reasons stated hereinabove, the writ petition is allowed. The petitioner shall be entitled to all consequential benefits flowing from this order.
28. No order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 3184 of 2009 PETITIONER : Smt. Monika Pradhan.
VERSUS RESPONDENTS : The State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Vivek Sharma, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondent Shri K.K.Dewangan, Advocate for the respondent No.
2.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 06th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that the petitioner was selected on the post of Shiksha Karmi Grade I, vide order dated 27.05.2009 and posted at Government High School, Ahilda, Block Baloda Bazar, District Raipur. The petitioner could not join the said place of posting and made an application for change of her place of posting and after due consideration, the petitioner was posted at Government Girls High School, Charoda, Block Dharsiwa vide order dated 18.6.2009 (Annexure P/4) as Maths teacher. The petitioner joined the said place on 19.6.2009.
Thereafter, vide order dated 25.06.2009, the respondent No.4 was posted in as Maths Teacher on the ground of rationalization policy. Shri Sharma submits that since there is only one post of Maths teacher at Charoda, due to transfer of the respondent No. 4 at Charoda as Maths Teacher, the order dated 18.02.2009 (Annexure P/4) was cancelled on 26.06.2009 (Annexure P/2) and the petitioner was reverted back to Government High School, Ahilda, Block Baloda Bazar.
2. Shri Sharma further submits that in the appointment order dated 27.05.2009 (Annexure P/3), clause 1 of the conditions clearly provides that the posting of a candidate would be for a particular school for a period of two years on probation. Thus, the impugned order dated 25.06.2009 (Annexure P/1) and 26.06.2009 (Annexure P/2) are bad in law. Once the order dated 18.6.2009 (Annexure P/4) has been given effect to, the same cannot be cancelled.
3. On the other hand, Shri Roy and Shri Dewangan, learned counsel appearing for the respondent No. 1 and 2 respectively, submit that the petitioner has been transferred on account of administrative exigency. However, there is no response to the averments of the petitioner that once the order has been executed, the same cannot be cancelled and further, the petitioner is appointed to a particular school initially on probation for a minimum period of two years.
4. Having considered, all the aspects of the matte and rival contentions of learned counsel appearing for the parties, perusal of the pleadings and documents appended thereto, it is crystal clear that the condition No. 1 of the appointment order dated 27.05.2009 (Annexure P/3) specifically provides that the appointment would be for a period of two years in a particular school and there would not be any change in any condition. Secondly, a change was made in the posting of the petitioner by order dated 18.6.2009 (Annexure P/4) from Government High School, Ahilda to Government Girls High School, Charoda, Dharsiwa. Pursuant to that, the petitioner also joined at Government Girls High School, Charoda on 19.06.2009 (Annexure P/5). The subsequent order dated 26.06.2009 (Annexure P/2) is contrary to the terms and conditions of the appointment and further once the order has been executed, the same cannot be cancelled. In the meantime, vide order dated 07.07.2009, passed by this Court, the petitioner has continued at his place of posting i.e. at Government Girls High School, Charoda.
5. For the reasons mentioned hereinabove, the impugned order dated 26.06.2009 (Annexure P/2) cancelling the order dated 18.06.2009 (Annexure P/4), and the order dated 25.06.2009 (Annexure P/1) so far it relates to posting of respondent No. 4 at Government Girls High School, Charoda, are illegal are accordingly quashed. The petitioner shall continue at his place of posting i.e. Government Girls High School, Charoda, till completion of her probation period as per clause 1 of the conditions of appointment order dated 27.05.2009 (Annexure P/3).
6. Accordingly, the writ petition is allowed.
7. No order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1000 of 2009 PETITIONER : Jagannath Prasad Yadav.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri D.R.Patel, Advocate for the petitioner.
Shri P.K.Bhaduri, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 07th day of April, 2010)
6. Challenge in this petition is to the communication dated 02.02.2009 (Annexure P/5) whereby a sum of Rs. 403/-
has been recovered from the salary of the petitioner for the month of January, 2009 and it has been further directed to recover a sum of Rs. 30,000/- in 25 installments of Rs.
1200/- each, from the petitioner holding it to be excess payment made to him, on account of wrong fixation of his salary..
7. Learned counsel appearing for the petitioner submits that the petitioner is working on the post of Peon at Government Higher Secondary School, Sariya, District Raigarh, The petitioner received a communication dated 02.02.2009 (Annexure P/5) issued by the respondent authorities whereby a sum of Rs. 403/- has been recovered from the salary of the petitioner for the month of January, 2009 and it has further been directed to recover a sum of Rs. 30,000/- in 25 installments of Rs. 1200/- each, holding it to be excess payment made to the petitioner, on account of wrong fixation of salary.
8. Shri Patel, learned counsel appearing for the petitioner submits that the punitive order of recovery has been passed without affording an opportunity of hearing to the petitioner. He further contends that the issue asto whether recovery of excess payment for no fault of the employee can be made without following the principles of natural justice is no longer res integra. The same has been settled by Hon'ble Supreme Court in various decisions (See Syed Abdul Qadir and others vs. State of Bihar and others13).
This Court, relying on the above decisions has passed several orders, directing refund of the amount, if any, recovered from the employees, where the employees were not given any opportunity to explain about the excess payment, if any, made to them.
9. Learned counsel appearing for the State/respondents does not dispute the above submission made by learned counsel appearing for the petitioner. Shri Bhaduri further submits that since no opportunity of hearing was afforded before passing the impugned order, liberty may be granted to the respondent/State to take steps for recovery of any excess amount after following the due process of law and after affording an opportunity of hearing to the petitioner.
10. It is a trite law that no order prejudicing the interest of an employee can be passed without affording an opportunity of hearing. It is not the case of respondents that opportunity of hearing was afforded to the petitioner, and the present case is such wherein notice of hearing is to be dispensed with.
11. The Supreme Court, in Rajasthan State Road Transport Corporation & another v. Bal Mukund Bairwa (2)14, observed as under:
"35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.R.Antulay this Court held: (SCC p.
660, para 55) "55. No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity."
47. The purpose of the principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is the pragmatic requirement of fair play in action. (See Sawai Singh v. State of Rajasthan and Narinder Mohan Arya v. United India Insurance Co. Ltd.).
12. Accordingly, the impugned order 02.02.2009 (Annexure P/5) directing recovery of a sum of Rs. 30000/- from the salary of the petitioner in 25 installments of Rs. 1200/-
each, on account of excess payment made to the petitioner, is hereby quashed. If the amount has already been recovered, the petitioner is entitled to refund of the said amount, subject to verification of facts. However, liberty is reserved to the State/respondents to take any steps, if so advised, in accordance with law for recovery of excess payment, if any.
13. The petition is allowed to the extent indicated above.
14. There shall be no order asto costs.
JUDGE Amit
15. Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION ( ) No. PETITIONER :
VERSUS RESPONDENTS :
WRIT PETITION UNDER ARTICLE SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: -----------------------------------
-----------------------------------
------------------------------------------------------------
--------------------------------
ORDER (ORAL)
(Passed on day of April, 2010)
JUDGE
Amit
HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1483 of 2010 PETITIONER : Smt. Asha Kushwaha.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri C.J.K.Rao, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 06th day of April, 2010)
1. The petitioner seeks to challenge the order dated 18.03.2010 (Annexure P/1) passed by the Chief Medical & Health Officer, North Bastar, Kanker, whereby the petitioner, working as Rural Health Coordinator (Women) has been repatriated back to his original post i.e. Sub Health Centre, Koliyari (Dhaneli Kanhar) from Sub Health Centre, Pataud (Dhaneli Kanhar).
2. Learned counsel appearing for the petitioner submits that earlier, the petitioner was placed under suspension on 09.10.2006 (Annexure P/2) by the respondent No. 2. At that point of time, the petitioner was serving at Sub Health Centre, Shamtara. During the period of suspension, the head quarter of the petitioner was changed to Sub Health Centre, Mulle, Block Antagarh. Later on, vide order dated 15.12.2006 (Annexure P/3), the suspension of the petitioner was revoked and the petitioner was posted at the present place of posting i.e. Sub Health Centre, Pataud.
3. Shri Rao further submits that the departmental enquiry has not been completed till date, and in order to harass the petitioner, her headquarter is being changed frequently and by the impugned order 18.03.2010 (Annexure P/1), she has again been sent back to her original place of posting i.e. Sub Health Centre, Koliyari (Dhanelikanhar).
4. On the other hand, Shri Roy, learned Panel Lawyer appearing for the State/respondents submits that earlier, the headquarter of the petitioner was changed as the petitioner was placed under suspension. After revoking the suspension order, the petitioner has been sent back to his original place of posting. Thus, there is no infirmity or illegality in the impugned order.
5. Heard rival contentions of learned counsel appearing for the parties, perused the pleadings and documents appended thereto.
6. The petitioner was earlier transferred from Sub Health Centre, Shamtara to Sub Health Centre, Mulle, Block Antagarh on account of the fact that she was placed under suspension.
The headquarter of the petitioner was changed keeping in view pendency of departmental enquiry to avoid undue influence in the proceedings of departmental enquiry and likely tampering with the records.
7. Later on, after revoking the suspension order, the petitioner was transferred and posted to Sub Health Centre, Pataud. It was made clear in the order dated 15.12.2006 (Annexure P/3), that the departmental enquiry shall go on. Later on, by impugned order dated 18.03.2010(Annexure P/1), the petitioner was sent back to his original place of posting i.e. Sub Health Centre, Koliyari (Dhanelikanhar). The petitioner has failed to establish asto what prejudice is caused to her by the impugned transfer order. The petitioner has not challenged the said order on any admissible ground i.e. lack of competence of the officer passing the order, malafide or violation of statutory rules or regulations. Even, the impugned order has been passed after three years of revoking the suspension order. Thus, it cannot be held that the petitioner is being harassed by transferring her frequently. Thus, no interference is warranted with the order dated 18.03.2010 (Annexure P/1).
8. Accordingly, the writ petition is dismissed at the motion stage itself. However, so far as pendency of departmental enquiry is concerned, since the petitioner was placed under suspension on 09.10.2006 and thereafter, her suspension was revoked on 15.12.2006 and more than three years have elapsed, it is expected that the respondent authorities may conclude the departmental enquiry as expeditiously as possible.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 979 of 2010 PETITIONER : Dr. Jhadi Narayan.
VERSUS RESPONDENTS : State of Chhattisgarh & another.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri S.S.Rajput, Advocate for the petitioner.
Shri V.V.S.Moorthy, Dy. G.A. for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 06th day of April, 2010)
1. By this petition, the petitioner impugns the order dated 17.02.2010 (Annexure P/1) whereby the petitioner working as Assistant Professor (Economics) in Government Post Graduate College, Jagdalpur, has been transferred to Government Shahid Venkatrao College, Bijapur.
2. Learned counsel appearing for the petitioner submits that by the impugned transfer order, the petitioner, who is working in a tribal area, has again been transferred to another tribal area. As per the policy of the State Government dated 20.10.2005 (Annexure P/2), the petitioner ought to have been given posting at a non-tribal area of his choice. Further, the impugned order has been passed in the mid academic session as her daughter is studying in class 12th at Central School, Jagdalpur. Her examination is to commence from 05.03.2010.
3. Per contra, Shri Moorthy, learned Deputy Advocate General appearing for the petitioner submits that in pursuance of the transfer order, the petitioner has already been relieved from his present place of posting which is evident from the relieving order dated 22.02.2010 (Annexure P/3). So far as the examination of the daughter of the petitioner is concerned, that is also over as the last paper was `science practical', which was held n 31.03.2010.
4. It is well-settled that transfer is an incidence of service and it is for the employer to decide asto where a particular officer/employee be posted, keeping in view public interest as well as administrative exigency. This Court has limited jurisdiction to interfere with the transfer matter except in the cases of proved malafide, non- competence of authority passing the transfer order and not being in conformity with the rules and regulations. The petitioner/employee cannot be permitted to remain at one place forever. Under the provisions of service rules, employer has all the powers to post an employee at a particular place in view of public interest and administrative exigency. (See E.P.Royappa v. State of Tamil Nadu and another15, Union of India and another v. Janardhan Debanath & another16, State of M.P. and another v. S.S.Kourav and others17 and Mohd. Masood Ahmad v. State of U.P. & Others18).
5. So far as contention of the petitioner that the impugned transfer order is contrary to the policy of the State Government is concerned, the policies are mere guidelines and not controlled by statutory provisions. The effect thereof is advisory in character and thereby no legal right is conferred upon the employee. (See: Chief Commercial Manager, South Central Railway, Secundarabad & Others v. G. Ratnam & Others19).
6. The Supreme Court, in Airports Authority of India v. Rajeev Ratan Pandey & Others20, held that "In a matter of transfer of a government employee, scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer".
7. Even otherwise, there is no challenge to the impugned order on any permissible legal grounds as aforestated, warranting interference.
8. For the reasons as aforestated, the petition is dismissed.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 7107 of 2009 PETITIONER : Bhojraj Bagaswar.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Manoj Paranjpe, Advocate for the petitioner.
Shri M.P.S.Bhatia, Deputy Government Advocate for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that the petitioner has been removed from service vide order dated 07.09.2009 (Annexure P/1) on the allegation of embezzlement of public money to the tune of Rs. 3,85,000/-
relying on a circular dated 27.7.1966 (Annexure P/8). Shri Paranjpe further submits that a criminal case has been registered against the petitioner which is still pending trial and no final order has been passed either convicting or acquitting the petitioner from the charges. A show cause notice has also been issued to the petitioner on 18.02.2009 (Annexure P/5) by the respondent No. 4 with a charge sheet and a departmental enquiry is pending consideration. During pendency of the departmental enquiry as well as the criminal trial, the respondent-authorities, misinterpreting the circular dated 27.7.1966 has removed the petitioner from service.
2. Shri Bhatia, learned counsel appearing for the State/respondents submits that the petitioner has been removed from service in view of the circular issued by the General Administration Department. Since there is serious allegation of financial embezzlement, thus, the order of removal was rightly passed as the petitioner has unauthorizedly withdrawn a sum of Rs. 3,85,000/-.
3. On consideration of rival contentions of learned counsel appearing for the parties, there is no dispute that after issue of the show cause notice alongwith the charge sheet, the departmental enquiry is pending consideration and the criminal case is also pending trial. Without waiting for the decision either in the departmental enquiry or in the criminal trial, the order of removal has been passed. It is clear that the respondent authorities have misinterpreted the circular dated 27.7.1966. Admittedly, after issue of the show cause notice and charge sheet and after registration of criminal case, the enquiry as well as trial, both are pending consideration. On bare perusal of the circular dated 27.7.1966 (Annexure P8), it is crystal clear that an employee may be removed from service if he has been found guilty either by the criminal court or in the departmental enquiry. It appears to be a case of gross violation of principles of natural justice and infringement of provisions of Article 311(2) of the Constitution of India.
4. Looking from all angles, the order of removal from service dated 07.09.2009 (Annexure P/1) is bad in law and is accordingly quashed. However, the respondent authorities may go on with the departmental enquiry as well as criminal trial, whatever is pending consideration and thereafter, may pass appropriate orders, if so advised, in accordance with law.
5. The petition is allowed. No order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1536 of 2010 PETITIONERS : B. Ravi Kumar & Others.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Gurudev I. Sharan, Advocate for the petitioners.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that the petitioners were appointed on the post of Data Entry Operator on contract basis and till today, they are working on the same posts on contract basis. Shri Sharan further submits that the similarly situated candidates have been regularised in service which is evident from order 22.12.2008 (Annexure P/5).
2. On the other hand, Shri Roy, learned counsel appearing for the State/respondents submits petitioners were appointed on contract basis and their service condition is governed by the provisoisn of Chhattisgarh Civil Services (Contract Appointment) Rules, 2004. The petitioner cannot claim regularisation in service as a matter of right. Shri Roy further submits that the petitioner's services can be extended for further period but that too, if their performance is found satisfactory.
3. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.
4. The issue involved in the present petition is no longer res integra as the Supreme Court, in a catena of decisions has made clear that the employees appointed on contract basis have no right to continue in service or reinstatement after period of contract is over.
5. Admittedly, the petitioners were appointed on contract basis and not in accordance with the constitutional scheme of employment. The appointment of the petitioners was purely on temporary basis for a fixed term of 12 months from the date of their joining in services.
6. It is trite that a temporary, ad hoc employee/daily wager or contract appointee cannot claim regularization, continuance or reinstatement in service on the basis of appointment, which was temporary and not in accordance with law and the same was de hors the constitutional scheme of employment. (See Secretary, State of Karnataka and Others vs. Umadevi (3) and Others21, Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd.22, Official Liquidator v. Dayanand and others23 and State of Punjab and Others v. Surjit Singh and Others24).
7. With regard to regularisation of the employees working on temporary/contract basis, the Supreme Court in Umadevi (supra), observed as under:
"Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee."
8. The above ratio laid down by the Supreme Court has been reiterated by this Court in Ashwani Kumar Verma & Others v.
State of Chhattigarh & Another25 and Somendra Pratap Singh v.
The State of M.P. & others26. Against the order passed in Somendra Pratap Singh (supra), the petitioner therein preferred a writ appeal being W.A. (PR) No. 2077/2008, which was dismissed by the Division Bench of this Court by order dated 29.04.2008 affirming the order passed by the Single Bench. Thereagainst, the matter was taken upto the Supreme Court by filing Special Leave Petition being S.L.P.(C) No. 27190/2008 (Somendra Pratap Singh v. State of Chhattisgarh & Others), which was also dismissed by the Supreme Court affirming the view taken by this Court, vide its order dated 23.03.2009.
9. This Court in Sanjay Patil v. State of Chhattisgarh & Another27, while dealing with similar issue observed that "if the State Government has regularized some of the daily wagers, not appointed in accordance with the constitutional scheme of employment, this Court cannot issue a positive direction to legalise the illegal appointment on the ground that certain illegal appointments have been legalized/regularized by the employer.
10. In this context, the Supreme Court, in Ashok Kumar Sonkar v. Union of India28, observed as under:
"34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularised. The Court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity. "
11. Further, in State of Punjab & another v. Surjit Singh & Others29, the Supreme Court reaffirmed the above ratio in the following terms:
"39. We would, however, before parting make an observation that the submission of the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour are legal and not illegal. It has a positive concept."
12. In view of foregoing, for the reasons stated hereinabove and applying the well settled principles of law to the facts of the present case wherein the petitioners were appointed purely on contract basis for a period of 12 months, they are not entitled to any writ/relief.
13. In the result, the writ petition is dismissed at the motion stage itself.
14. No order asto costs.
J U D G E HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 3169 of 2009 PETITIONER : Chhattisgarh Kusth Services Employee Union.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Rajesh Kumar Sharma, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 05th day of April, 2010)
1. The petitioner, by this petition, seeks quashing of the order dated 01.08.1994 whereby the then Chief Medical and Health Officer, Bilaspur, directed that the Headquarter of all the employees and medical officers of Bilha Leprosy Centre, Bilha would be at Community Health Centre, Bilha. Thereafter, by order dated 15.05.2009 (Annexure P/2) the Chief Medical & Health Officer, Bilaspur has directed all the employees working in the Leprosy Control Unit, Bilha would be under control and direction of the Block Medical Officer, Bilha.
2. The petitioner had earlier filed a writ petition being W.P. No. 2970/1994. The said petition was dismissed on 12.7.2005 on the ground of having become infructuous as the learned counsel appearing for the State/respondent submitted that the National Leprosy Eradication Programme had already been closed in the month of March, 2004. Thereafter, the petitioner preferred an application for restoration being M.C.C. No. 214/2004. The application for restoration was though dismissed, however, liberty was granted to the petitioner to file a fresh petition, if cause of action still survived.
3. Contention of learned counsel for the petitioner is that the respondent No. 3 has no jurisdiction to shift the Leprosy Control Unit from one place to another and only the Directorate is competent to do so. Instead of shifting the Headquarter of the employees of the Bilha Leprosy Centre, a Medical Officer should be appointed at Bilha under whom the petitioner may work. According to the petitioner, the officer of Leprosy Centre is Directorate, Medical Health, Raipur and no other officer can be Medical Officer for the employees of Rural Leprosy Centre. Shri Sharma further submits that the petitioner is not the employee of Health Services Department.
4. Per contra, Shri Roy, learned Panel Lawyer appearing for the State/respondents, relying on the affidavit dated 10.08.2009, submits that all the employees of the leprosy mission have been attached to the Health Services which is evident from circular dated 22.09.2001 (Annexure R/2). Thus, the respondent No. 3 has full authority to change the headquarter of the petitioner.
5. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.
6. The petitioner has not disclosed anything asto how the petitioner is affected by change of his headquarter. The contention of the petitioner that the Director of Health Services alone can issue directions and instructions and not the Chief Medical & Health Officer, is frivolous and not supported by any documentary evidence. Further, there is no particular instance shown by the petitioner that some order has been passed which is contrary to the orders passed by the Director, Health Services/Deputy Director, Leprosy, and has prejudiced cause of the employees.
7. The petition is bereft of merit and is accordingly dismissed at the motion stage itself.
JUDGE Amit Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1522 of 2010 PETITIONER : Smt. Ila Choudhary.
VERSUS RESPONDENTS : State of Chhattisgarh & another.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri D.R.Patel, Advocate for the petitioner.
Shri M.P.S.Bhatia, Dy. G.A. for the State/respondent No.1.
Shri H.B.Agrawal, Senior Advocate with Smt. Meera Jaiswal, Advocate for the respondent No. 2.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that there is a column for mentioning the name of the father/husband, date of birth and subject which have clearly been written in the application form (Annexure P/1) by the petitoner. But in the result sheet, in the column of `S/o, D/o, W/o' has been left blank and in the column of `date of birth' it has been mentioned as `not mentioned' and in respect of subject also, there is no mention. The petitioner has accordingly made representation on 12.01.2010 (Annexure P/5) to the respondent No. 2.
2. Shri Agrawal, learned Senior counsel appearing for the respondent No. 2 submits that if the representation is still pending, the same shall be considered and decided in accordance with law, on its own merits and perspective, as expeditiously as possible, preferably within a period of two weeks from the date of receipt of a copy of this order.
3. In view of the above, according to learned counsel appearing for the petitioner, nothing survives for adjudication at this stage.
4. Accordingly, the writ petition is disposed of.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1539 of 2010 PETITIONER : Arjun Lal Navneet.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Vineet K. Pandey, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
1. The petitioner impugns the communication dated 26.05.2009 (Annexure P/1) whereby the Joint Director, Treasury Accounts & Pension, Bilaspur Division, has written to the Principal, Government Higher Secondary School, Kotra, District Raigarh, to take appropriate action under the provisions of Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short `the Rules, 1976').
2. The petition is at the stage of initiation of proceedings under the provisions of the Rule 65 of the Rules, 1976.
3. Shri Pandey, learned counsel appearing for the petitioner submits that in light of the decisions rendered by the Supreme Court in Syed Abdul Qadir and others v. State of Bihar and others30 as well as this Court in Ramchandra Kurup v. State of C.G. & others31 wherein it was held that no recovery can be made under Rule 65 of the Rules, 1976 after retirement of an employee.
4. Reliance of the petitioner on the aforesaid cases is not applicable and available to the facts of the case. In the above cases, recovery was made without following the due process of law and without affording opportunity of hearing, in such circumstances, it was held that on account of the fault of the employer, no recovery can be made from the employee. However, the provisions of Rule 65 of the Rules, 1976 was not under challenge in the above petitions.
5. In view of Rule 65 of the Rules, 1976, the petitioner cannot escape from show cause notice, reply thereto and the order thereon. The impugned communication does not disclose any cause of action as it is at the stage of initiation of show cause notice. Thereafter, notices has to be issued and the reply to the notice will also required to be filed. Without there being any order against the petitioner, the petition is not maintainable.
6. Accordingly, the writ petition is dismissed as not maintainable at the motion stage itself.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 911 of 2002 PETITIONER : Kedarnath Kurmi.
VERSUS RESPONDENTS : Chhattisgarh State Electricity Board & another.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri M.K.Baeg, Advocate for the petitioner.
Shri Yogesh Pandey, Advocate for the respondent No. 1.
Shri A.V.Shridhar, Panel Lawyer for the State/respondent No.2.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 09th day of April, 2010)
15. Learned counsel appearing for the petitioner submits that the petitioner was appointed as Helper with the respondent No. 1 in January, 1976. All of a sudden, the petitioner was removed from service in the month of October, 1978 without any notice. Later on some of the similarly situated employees were taken back in employment, but the petitioner was not taken back. Against the said action, the petitioner made various representation to the respondent No. 1, but of no avail. Thereafter, the Minister of Energy and other authorities also recommended for regularisation/reappointment in service but still, the petitioner was not taken back in service. Shri Baeg further submits that the contention of the respondent No. 1 for not taking back the petitioner in service was that there was a ban on appointment at the relevant time. Thereafter, the petitioner remained in touch with the respondent No. 1 continuously, but till date, the respondent No. 1 has not taken any steps to grant appointment to the petitioner.
16. On the other hand, Shri Yogesh Pandey, learned counsel appearing for the respondent No. 1 submits that the petitioner was appointed as casual labour purely on temporary basis. Further, his appointment was also not in accordance with the constitutional scheme of employment.
17. Heard learned counsel for the petitioner, perused the pleadings and documents appended thereto.
18. The petitioner has neither filed any document nor pleaded in the petition so asto indicate the fact asto what was the nature of his appointment and what was the mode of his appointment, whether the petitioner was appointed through open competition or otherwise. Thus, for want of relevant materials, the case cannot be adjudicated. Further, admittedly, the petitioner was a casual labour. It appears from the certificate dated 09.02.1979 (Annexure P/1) that the petitioner was appointed for a specific period i.e. from January, 1976 to October, 1978 and he was not appointed in accordance with the constitutional scheme of employment.
19. The issue involved in the present petition is no longer res integra as the Supreme Court, in a catena of decisions has made clear that the employees appointed on contract/casual/temporary basis have no right to continue in service or reinstatement. Admittedly, the petitioner was appointed as casual labour and not in accordance with the constitutional scheme of employment. The appointment of the petitioner was purely on temporary basis.
20. It is trite that a temporary, ad hoc employee/daily wager or casual appointee cannot claim regularization, continuance or reinstatement in service on the basis of appointment, which was temporary and not in accordance with law and the same was de hors the constitutional scheme of employment. (See Secretary, State of Karnataka and Others vs. Umadevi (3) and Others32, Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd.33, Official Liquidator v. Dayanand and others34 and State of Punjab and Others v. Surjit Singh and Others35).
21. With regard to regularisation of the employees working on temporary/contract/casual basis, the Supreme Court in Umadevi (supra), observed as under:
"Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee."
22. The above ratio laid down by the Supreme Court has been reiterated by this Court in Ashwani Kumar Verma & Others v. State of Chhattigarh & Another36 and Somendra Pratap Singh v. The State of M.P. & others37. Against the order passed in Somendra Pratap Singh (supra), the petitioner therein preferred a writ appeal being W.A. (PR) No. 2077/2008, which was dismissed by the Division Bench of this Court by order dated 29.04.2008 affirming the order passed by the Single Bench. Thereagainst, the matter was taken upto the Supreme Court by filing Special Leave Petition being S.L.P.(C) No. 27190/2008 (Somendra Pratap Singh v. State of Chhattisgarh & Others), which was also dismissed by the Supreme Court affirming the view taken by this Court, vide its order dated 23.03.2009.
23. This Court in Sanjay Patil v. State of Chhattisgarh & Another38, while dealing with similar issue observed that "if the State Government has regularized some of the daily wagers, not appointed in accordance with the constitutional scheme of employment, this Court cannot issue a positive direction to legalise the illegal appointment on the ground that certain illegal appointments have been legalized/regularized by the employer.
24. In this context, the Supreme Court, in Ashok Kumar Sonkar v. Union of India39, observed as under:
"34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularised. The Court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity. "
25. So far as the contention of the petitioner that the other similarly situated employees have been regularised, is concerned, the Supreme Court, in State of Punjab & another v. Surjit Singh & Others40, reaffirmed the above ratio in the following terms:
"39. We would, however, before parting make an observation that the submission of the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour are legal and not illegal. It has a positive concept."
26. In view of foregoing, for the reasons stated hereinabove and applying the well settled principles of law to the facts of the present case wherein the petitioners were appointed purely temporary basis, he is not entitled to any writ/relief.
27. In the result, the writ petition is dismissed at the motion stage itself.
28. No order asto costs.
J U D G E Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 6131 of 2009 PETITIONER : Smt. Jema Bai.
VERSUS RESPONDENTS : Joint Director, Pension & Accounts, Bilaspur Division & another.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Manoj Jaiswal, Advocate for the petitioner.
Shri P.K.Bhaduri, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 09th day of April, 2010)
16. Challenge in this petition is to the order dated 29.01.2007 (Annexure P/2) and the order dated 01.09.2009, whereby a sum of Rs. 59,247/- has been directed to be recovered from the petitioner from his retiral dues of the husband of the petitioner, holding it to be excess payment made to him.
17. The facts, in nutshell, as projected by the petitioner are that the husband of the petitioner, while working as Accountant in the office of respondent No. 2, retired on attaining the age of superannuation on 19.06.2006. Thereafter, on 20.006.2006, the husband of the petitioner expired. The petitioner received a communication dated 29.01.2007 (Annexure P/1) whereby it was directed to recover a sum of Rs. 59,247/- holding it to be excess payment made to the husband of the petitioner during the course of his service In the meantime, the petitioner received a communication from the respondent No. 2, dated 01.09.2009 (Annexure P/1) wherein it was stated that the application of the petitioner for refund of the excess amount deducted by the authorities, has been rejected. It was further mentioned in the said communication that the petitioner herself had given consent for deducting the said excess amount.
18. Learned counsel further submits that the issue asto whether recovery of excess payment for no fault of the employee can be made without following the principles of natural justice is no longer res integra. The same has been settled by Hon'ble Supreme Court in various decisions (See Syed Abdul Qadir and others v. State of Bihar and others41). This Court, relying on the above decisions has passed several orders, directing refund of the amount, if any, recovered from the employees, where the employees were not given any opportunity to explain about the excess payment, if any, made to them. Shri Jaiswal further contends that any recovery from retiral dues can be made only in case if there was any misrepresentation or fraud on the part of the employee and the employee had knowledge that the payment was received in excess. The error, if any, could have been corrected within a short span of time from wrong payment.
19. Shri Roy, learned Panel Lawyer appearing for the State/respondents submits that excess payment was not made on account of any misrepresentation or fraud committed by the husband of the petitioner. Admittedly, this was a case of misconstruction of the provisions of wrong fixation of salary. He further submits that the similar order may be passed, subject to verification of facts.
20. This Court, as well as Hon'ble Supreme Court, in a catena of decisions, time and again reiterated that no recovery of excess payment for no fault of the employee can be made without following the principles of natural justice. This Court in Ramchandra Kurup v. State of C.G. & others42 and other connected matters, decided on 23rd November, 2009, observed as under:
"19. A common thread running into the above decisions of the Supreme Court is that, for recovery of excess payment of emoluments/allowances, there are three conditions wherein the excess payment may be recovered, namely (i) excess payment was made on account of misrepresentation or fraud on the part of the employee, (ii) the employee had knowledge that the payment received was in excess, and (iii) the error was corrected within a short span of time of wrong payment...."
21. In view of the forgoing, the impugned order dated 01.09.2009 (Annexure P/1) and 29.01.2007 (Annexure P/2) whereby a sum of Rs. 59,247/- has been recovered from the retiral dues of the husband of the petitioner, on account of excess payment, are hereby quashed. If the said amount has already been recovered, the same shall be refunded back to the petitioner with 6% simple interest.
22. However, liberty is reserved to the State/respondents that if the excess payment has been made on account of misrepresentation or fraud on the part of the employee, or the employee had the knowledge that the payment received by his was in excess, fresh orders may be issued on verification of the facts, after affording opportunity of hearing to the petitioner.
23. The writ petition is accordingly disposed of. No order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 1867 of 2003 PETITIONER : Cement Corporation of India.
VERSUS RESPONDENTS : Smt. Malti Bai Sahu & another.
PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri P.S.Koshy, Advocate for the petitioner.
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--------------------------------
ORDER (ORAL) (Passed on 09th day of April, 2010)
1. The petitioner impugns the order dated 17.04.2003 (Annexure P/1) passed by the appellate authority under the Payment of Gratuity Act, 1972 and Deputy Labour Commissioner, Raipur, wherein the appeal of the petitioner being Appeal Case No. 21/P.G.A./2003 was rejected on the ground of delay.
2. The facts, in nutshell, are that the respondent No. 1 made an application under the provisions of the Act, 1972. The Controlling Authority, after considering all the aspects, held that the respondent No. 1 was entitled to grant of gratuity to the tune of Rs. 34,349/-. Thereafter, after depositing the money, the appeal was preferred by the petitioner with a delay of 114 days, alongwith an application for condonation of delay, stating that the company was not in a position to deposit the gratuity amount which was ordered by the Controlling Authority. After release of the money by the Central Government, the amount was deposited. The court below has rejected the application for condonation of delay and consequently, the appeal was also dismissed.
3. Admittedly, 60 days has been prescribed statutorily to prefer an appeal against the order passed by the controlling authority under the Payment of Gratuity Act, 1972. In the case on hand, the gratuity amount was paid to the petitioner, pursuant to the order dated 07.05.2002, the petitioner company has taken a plea that they were not in a financial position to deposit a sum of Rs. 34,349/-.
4. Having considered all the aspects of the matter, wherein the gratuity amount must have been taken over by the employee and she must have used the same for other purposes treating it as clear money with no litigation. At this stage, after a period of 7 years, it would not be just and proper to condone the delay and send back the matter for fresh decision on merits.
5. Accordingly, the writ petition is dismissed. M(W)P No. 1688/2003 is also dismissed.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1124 of 2010 PETITIONER : Thawish H. Nandanwar.
VERSUS RESPONDENTS : The State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri A.K.Prasad, Advocate for the petitioner.
Shri V.V.S.Moorthy, Dy. A.G. for the State/respondents 1 & 2.
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--------------------------------
ORDER (ORAL) (Passed on 09th day of April, 2010)
1. Learned counsel appearing for the petitioner, on instructions, seeks permission of this Court to withdraw this petition with liberty to file a fresh petition.
2. It is ordered accordingly.
3. Consequently, the writ petition is dismissed as withdrawn with the aforestated liberty, if so advised.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1181 of 2010 PETITIONER : Ram Baran Singh Tomar.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri A.S.Rajput, Advocate for the petitioner.
Shri V.V.S.Moorthy, Deputy Advocate General for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 09th day of April, 2010)
1. Learned counsel appearing for the petitioner, on instructions, seeks permission of this Court to withdraw this petition with liberty to take recourse to alternative statutory forum that may be available to the petitioner, under the provisions of law.
2. It is ordered accordingly.
3. Consequently, the writ petition is dismissed as withdrawn with the aforestated liberty, if so advised.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 4919 of 2004 PETITIONER : Shrimati Saguna.
VERSUS RESPONDENTS : State Government of Chhattisgarh & another.
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Somkant Verma, Advocate for the petitioner.
Shri A.V.Shridhar, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 09th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that pursuant to the circular dated 13.03.207 (Annexure R/1), the age of retirement of permanent gangman has been settled at 62 years. Thus, nothing survives for adjudication as pursuant to the aforesaid circular, the petitioner may not be retired before attaining the age of 62 years.
2. Shri Shridhar, learned Panel Lawyer appearing for the State/respondent submits that in view of the aforesaid circular, the petitioner is entitled to retire only on attaining the age of 62 years.
3. In view of the above submissions made by learned counsel appearing for the parties, nothing survives for adjudication and the writ petition is accordingly dismissed as having become infructuous.
4. Consequently, M(W)P NO. 5181/2004, is also dismissed.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1536 of 2010 PETITIONERS : B. Ravi Kumar & Others.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Gurudev I. Sharan, Advocate for the petitioners.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
29. Learned counsel appearing for the petitioner submits that the petitioners were appointed on the post of Data Entry Operator on contract basis and till today, they are working on the same posts on contract basis. Shri Sharan further submits that the similarly situated candidates have been regularised in service which is evident from order 22.12.2008 (Annexure P/5).
30. On the other hand, Shri Roy, learned counsel appearing for the State/respondents submits petitioners were appointed on contract basis and their service condition is governed by the provisoisn of Chhattisgarh Civil Services (Contract Appointment) Rules, 2004. The petitioner cannot claim regularisation in service as a matter of right. Shri Roy further submits that the petitioner's services can be extended for further period but that too, if their performance is found satisfactory.
31. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.
32. The issue involved in the present petition is no longer res integra as the Supreme Court, in a catena of decisions has made clear that the employees appointed on ad hoc basis have no right to continue in service or reinstatement. The appointment itself is de hors the constitutional scheme of employment.
33. Admittedly, the petitioners were appointed on contract basis and not in accordance with the constitutional scheme of employment. The appointment of the petitioners was purely on temporary basis for a fixed term of 12 months from the date of their joining in service.
34. It is trite that a temporary, ad hoc employee/daily wager or contract appointee cannot claim regularization, continuance or reinstatement in service on the basis of appointment, which was temporary and not in accordance with law and the same was de hors the constitutional scheme of employment. (See Secretary, State of Karnataka and Others vs. Umadevi (3) and Others43, Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd.44, Official Liquidator v. Dayanand and others45 and State of Punjab and Others v. Surjit Singh and Others46).
35. With regard to regularisation of the employees working on temporary basis, the Supreme Court in Umadevi (supra), observed as under:
"Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee."
36. The above ratio laid down by the Supreme Court has been reiterated by this Court in Ashwani Kumar Verma & Others v.
State of Chhattigarh & Another47 and Somendra Pratap Singh v.
The State of M.P. & others48. Against the order passed in Somendra Pratap Singh (supra), the petitioner therein preferred a writ appeal being W.A. (PR) No. 2077/2008, which was dismissed by the Division Bench of this Court by order dated 29.04.2008 affirming the order passed by the Single Bench. Thereagainst, the matter was taken upto the Supreme Court by filing Special Leave Petition being S.L.P.(C) No. 27190/2008 (Somendra Pratap Singh v. State of Chhattisgarh & Others), which was also dismissed by the Supreme Court affirming the view taken by this Court, vide its order dated 23.03.2009.
37. This Court in Sanjay Patil v. State of Chhattisgarh & Another49, while dealing with similar issue observed that "if the State Government has regularized some of the daily wagers, not appointed in accordance with the constitutional scheme of employment, this Court cannot issue a positive direction to legalise the illegal appointment on the ground that certain illegal appointments have been legalized/regularized by the employer.
38. In this context, the Supreme Court, in Ashok Kumar Sonkar v. Union of India50, observed as under:
"34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularised. The Court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity. "
39. Further, in State of Punjab & another v. Surjit Singh & Others51, the Supreme Court reaffirmed the above ratio in the following terms:
"39. We would, however, before parting make an observation that the submission of the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour are legal and not illegal. It has a positive concept."
40. In view of foregoing, for the reasons stated hereinabove and applying the well settled principles of law to the facts of the present case wherein the petitioners were appointed purely on contract basis for a period of 12 months, thus, they are not entitled to any relief.
41. In the result, the writ petition is dismissed at the motion stage itself.
42. No order asto costs.
J U D G E Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 7107 of 2009 PETITIONER : Bhojraj Bagaswar.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Manoj Paranjpe, Advocate for the petitioner.
Shri M.P.S.Bhatia, Deputy Government Advocate for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
6. Learned counsel appearing for the petitioner submits that the petitioner has been removed from service vide order dated 07.09.2009 (Annexure P/1) on the allegation of embezzlement of public money to the tune of Rs. 3,85,000/-
relying on a circular dated 27.7.1966 (Annexure P/8). Shri Paranjpe further submits that a criminal case has been registered against the petitioner which is still pending trial and no final order has been passed either convicting or acquitting the petitioner from the charges. A show cause notice has also been issued to the petitioner on 18.02.2009 (Annexure P/5) by the respondent No. 4 with a charge sheet and a departmental enquiry is pending consideration. During pendency of the departmental enquiry as well as the criminal trial, the respondent-authorities, misinterpreting the circular dated 27.7.1966 has the removed the petitioner from service.
7. Shri Bhatia, learned counsel appearing for the State/respondents submits that the petitioner has been removed from service in view of the circular issued by the General Administration Department. Since there is serious allegation of financial embezzlement, thus, the order of removal was rightly passed as the petitioner has unauthorizedly withdrawn a sum of Rs. 3,85,000/-.
8. On consideration of rival contentions of learned counsel appearing for the parties, there is no dispute that after issue of the show cause notice alongwith the charge sheet, the departmental enquiry is pending consideration and the criminal case is also pending trial. Without waiting for the decision either in the departmental enquiry or in the criminal trial, the order of removal has been passed. It is clear that the respondent authorities have misinterpreted the circular dated 27.7.1966 when admittedly, after issue of the show cause notice and charge sheet and after registration of criminal case, the enquiry as well as trial, both are pending consideration. On bare perusal of the circular dated 27.7.1966 (Annexure P8), it is crystal clear that an employee may be removed from service if he has been found guilty either by the criminal court or in the departmental enquiry. It appears to be a case of gross violation of principles of natural justice and infringement of provisions of Article 311(2) of the Constitution of India.
9. Looking from all angles, the order of removal from service dated 07.09.2009 (Annexure P/1) is bad in law and is accordingly quashed. However, the respondent authorities may go on with the departmental enquiry as well as criminal trial, whatever is pending consideration and thereafter, pass appropriate orders, if so advised, in accordance with law.
10. The petition is allowed. No order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1522 of 2010 PETITIONER : Smt. Ila Choudhary.
VERSUS RESPONDENTS : State of Chhattisgarh & another.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri D.R.Patel, Advocate for the petitioner.
Shri M.P.S.Bhatia, Dy. G.A. for the State/respondent No.1.
Shri H.B.Agrawal, Senior Advocate with Smt. Meera Jaiswal, Advocate for the respondent No. 2.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
5. Learned counsel appearing for the petitioner submits that there is a column for mentioning the name of the father/husband, date of birth and subject which have clearly been written in the application form (Annexure P/1) by the petitoner. But in the result sheet, in the column of `S/o, D/o, W/o' has been left blank and in the column of `date of birth' it has been mentioned as `not mentioned' and in respect of subject also, there is a mention. The petitioner has accordingly made representation on 12.01.2010 (Annexure P/5) to the respondent No. 2.
6. Shri Agrawal, learned Senior counsel appearing for the respondent No. 2 submits that if the representation is still pending, the same shall be considered and decided in accordance with law, on its own merits and perspective, as expeditiously as possible, preferably within a period of two weeks from the date of receipt of a copy of this order.
7. In view of the above, according to learned counsel appearing for the petitioner, nothing survives for adjudication at this stage.
8. Accordingly, the writ petition is disposed of.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1539 of 2010 PETITIONER : Arjun Lal Navneet.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Vineet K. Pandey, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
7. The petitioner impugns the communication dated 26.05.2009 (Annexure P/1) whereby the Joint Director, Treasury Accounts & Pension, Bilaspur Division, has written to the Principal, Government Higher Secondary School, Kotra, District Raigarh, to take appropriate action under the provisions of Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short `the Rules, 1976').
8. The petition is at the stage of initiation of proceedings under the provisions of the Rule 65 of the Rules, 1976.
9. Shri Pandey, learned counsel appearing for the petitioner submits that in light of the decisions rendered by the Supreme Court in Syed Abdul Qadir and others v. State of Bihar and others52 as well as this Court in Ramchandra Kurup v. State of C.G. & others53 wherein it was held that no recovery can be made under Rule 65 of the Rules, 1976 after retirement of an employee.
10. Reliance of the petitioner on the aforesaid cases is not applicable and available to the facts of the case. In the above cases, recovery was made without following the due process of law and without affording opportunity of hearing, in such circumstances, it was held that on account of the fault of the employer, no recovery can be made from the employee. However, the provisions of Rule 65 of the Rules, 1976 was not under challenge in the above petitions.
11. In view of Rule 65 of the Rules, 1976, the petitioner cannot escape from show cause notice, reply thereto and the order thereon. The impugned communication does not disclose any cause of action as it is at the stage of initiation of show cause notice. Thereafter, notices has to be issued and the reply to the notice will also required to be filed. Without there being any order against the petitioner, the petition is not maintainable.
12. Accordingly, the writ petition is dismissed as not maintainable at the motion stage itself.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 1431 of 2005 PETITIONER : Ramesh Ghosle.
VERSUS RESPONDENTS : The Presiding Officer, Labour Court, Bilaspur & another.
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Rajeev Shrivastava, Advocate with Shri Malay Shrivastava, Advocate for the petitioner.
Shri M.P.S.Bhatia, Deputy Government Advocate for the State/respondent No. 2.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that in light of the decision of this Court in M/s. Radius Corporation Limited v. Manish Sharma & Others54, this petition is not maintainable, thus, the petitioner may be permitted to withdraw this petition. However, the petitioner may be granted liberty to take recourse to other alternative forum seeking redressal of his grievances.
2. Learned counsel appearing for other side has no objection.
3. It is ordered accordingly.
4. Consequently, the writ petition is dismissed as withdrawn with the aforestated liberty, if so advised.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 3119 of 2005 PETITIONER : Smt. Shashi Nagendra.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION U/A 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: None for the petitioner.
None for the respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
3. The matter is called for hearing twice. None appears nor any representation is made on behalf of the petitioner.
The petitioner may not be interested in pursuing the matter.
4. In view of the above, the matter is dismissed for want of prosecution.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 2405 of 2006 PETITIONER : Municipal Council Kharsiya.Raigarh.
VERSUS RESPONDENTS : Labour Court, Raigarh & another.
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: None for the petitioner.
None for the respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
5. The matter is called for hearing twice. None appears nor any representation is made on behalf of the petitioner.
The petitioner may not be interested in pursuing the matter.
6. In view of the above, the matter is dismissed for want of prosecution.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1538 of 2010 PETITIONER : R.S.Rathore.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
------------------------------------- Present: Shri Satyendra Sahu, Advocate for the petitioner.
Shri V.V.S.Moorthy, Deputy Advocate General with Shri N.N.Roy, Panel Lawyer for the State/respondent No. 1 and 2.
------------------------------------------------------------
---------------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that the petitioner has not been paid travelling allowance and his medical bills have also not been reimbursed, despite several representations made on 13.07.2009, 10.08.2009, 05.10.2009 and 04.11.2009 to the Chief Executive Officer, Janpad Panchayat, Darbha. He prays that the respondent authorities may be directed to consider and decide his pending representations, expeditiously.
2. It is surprising that asto why an employee the Chief Executive Officer, Janpad Panchayat, Darbha is not feeling any responsibility with regard to the grievance of the petitioner. If an employee has spent from his pocket and is legally entitled for reimbursement of the amount, there is no reason that he should be denied payment of the amount on account of laxity or laziness of the superior officer.
3. Shri Sahu, learned counsel appearing for the petitioner submits that at this stage, the petitioner does not want to press the prayer with regard to grant of arrears of sixth pay scale in this petition.
4. In view of the above, the Collector, Bastar at Jagdalpur is directed to examine the grievance of the petitioner and consider and decide his representations pending before the Chief Executive Officer, Janpad Panchayat, Darbha, in accordance with law, and pass appropriate orders, within a period of six weeks from the date of receipt of a copy of this order.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1510 of 2010 PETITIONER : Adhin Ram Sahu.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Gautam Khetrapal, Advocate for the petitioner.
Shri P.K.Bhaduri, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
1. By this petition, the petitioner seeks a direction to the respondents to pay two advance increments on passing of B.Ed examination, on his own expenses, before entering into service.
2. Learned counsel appearing for the petitioner submits that the issue involved in the present case is no longer res integra as the same has been considered and decided by the Supreme Court in Asha Saxena v. State of M.P. & Ors.55 as well as by this Court in the matter of Yashwant Kumar Bharadwaj v. Municipal Corporation, Durg & another56 and Gopesh Kumar Verma v. The State Govt. of Chhattisgarh and another57 .
3. Learned counsel further submits that the instant petition is squarely covered by the decision as aforestated. Thus, the petitioner may be permitted to make a representation to the respondent authorities to decide his case for grant of two increments in the light of aforestated decision, subject to verification of the fact asto whether the petitioner has acquired B.Ed. certificate on his own expenses before entering into service.
4. Learned counsel appearing for the State/respondents submits that in the event, the petitioner makes a representation, the same will be considered and decided, in accordance with law and in the light of the decisions of the Supreme Court in Asha Saxena (supra) as well as this Court in Yashwant Kumar Bharadwaj and Gopesh Kumar Verma (supra), within a period of four weeks from the date of receipt of the representation.
5. In view of foregoing, according to the learned counsel appearing for the petitioners, nothing survives in this petition for adjudication.
6. Accordingly, the writ petition is disposed of.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 4611 of 2007 PETITIONER : Bhumed Singh.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Jeet Patel, Advocate for the petitioner.
Shri P.K.Bhaduri, Panel Lawyer for the State/respondent No.1.
Shri Majid Ali, Advocate on behalf of Shri A.S.Gaharwar, Advocate for the respondent No. 2 to 4.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010) I.A. No. 4.
This is an application for withdrawal of the petition, on the grounds stated therein. Learned counsel appearing for the other side have no objection.
It is ordered accordingly.
Consequently, the writ petition is dismissed as withdrawn.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR M.C.C. No. 101 of 2010 APPLICANTS. : Smt. Prashunna Bai & Others.
VERSUS NON-APPLICANTS : State of Chhattisgarh & another.
APPLICATION FOR RESTORATION OF W.P.(C) No. 2442/2008 SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri V.K.Sharma, Advocate for the applicants.
Shri P.K.Bhaduri, Panel Lawyer for the State/non- applicant No. 1.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 08th day of April, 2010)
1. Learned counsel appearing for the applicant submits that the counsel for the applicant could not appear on account of bona fide mistake, therefore, W.P (S) No. 2442/2008, which was dismissed on 9th February, 2010 may be restored to its file.
2. Reasonable and sufficient cause has been shown. W.P (S) No. 2442/2008 is restored to the original file.
3. A copy of this order be placed on record of the original writ petition and the same be listed for hearing.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1483 of 2010 PETITIONER : Smt. Asha Kushwaha.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri C.J.K.Rao, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 06th day of April, 2010) JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 979 of 2010 PETITIONER : Dr. Jhadi Narayan.
VERSUS RESPONDENTS : State of Chhattisgarh & another.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri S.S.Rajput, Advocate for the petitioner.
Shri V.V.S.Moorthy, Dy. G.A. for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 06th day of April, 2010) JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 3169 of 2009 PETITIONER : Chhattisgarh Kusth Services Employee Union.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Rajesh Kumar Sharma, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 05th day of April, 2010)
8. The petitioner, by this petition, seeks quashing of the order dated 01.08.1994 whereby the then Chief Medical and Health Officer, Bilaspur, directed that the Headquarter of all the employees and medical officers of Bilha Leprosy Centre, Bilha would be Community Health Centre, Bilha. Thereafter, by order dated 15.05.2009 (Annexure P/2) the Chief Medical & Health Officer, Bilaspur has directed all the employees working in the Leprosy Control Unit, Bilha under the direction of the Block Medical Officer, Bilha.
9. The petitioner had earlier filed a writ petition being W.P. No. 2970/1994. The said petition was dismissed on 12.7.2005 on the ground of having become infructuous as the learned counsel appearing for the State/respondent submitted that the National Leprosy Eradication Programme had already been closed in the month of March, 2004. Thereafter, the petitioner preferred an application for restoration being M.C.C. No. 214/2004. The application for restoration was though dismissed, however, liberty was granted to the petitioner to file a fresh petition, if cause of action still survived.
10. Contention of learned counsel for the petitioner is that the respondent No. 3 has no jurisdiction to shift the Leprosy Control Unit from one place to another and only the Directorate is competent to do so. Instead of shifting the Headquarter of the employees of the Bilha Leprosy Centre, a Medical Officer should be appointed at Bilha under whom the petitioner may work. According to the petitioner, the officer of Leprosy Centre is Directorate, Medical Health, Raipur and no other officer can be Medical Officer for the employees of Rural Leprosy Centre. Shri Sharma further submits that the petitioner is not the employee of Health Services Department.
11. Per contra, Shri Roy, learned Panel Lawyer appearing for the State/respondents, relying on the affidavit dated 10.08.2009, submits that all the employees of the leprosy mission have been attached to the Health Services which is evident from circular dated 22.09.2001 (Annexure R/2). Thus, the respondent No. 3 has full authority to change the headquarter of the petitioner.
12. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.
13. The petitioner has not disclosed anything asto how the petitioner is affected by change of his headquarter. The contention of the petitioner that the Director of Health Services alone can issue directions and instructions and not the Chief Medical & Health Officer, is frivolous and not supported by any documentary evidence. Further, there is no particular instance shown by the petitioner that some order has been passed which is contrary to the orders passed by the Director, Health Services/Deputy Director, Leprosy.
14. The petition is bereft of merit and is accordingly dismissed at the motion stage itself.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 5784 of 2009 PETITIONER : Smt. Shabina Bano Ansari.
VERSUS RESPONDENTS : State of Chhattisgarh & another.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Satyendra Sahu, Advocate for the petitioner.
Shri P.K.Bhaduri, Panel Lawyer for the State.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 05th day of April, 2010)
1. Challenge in this petition is to the rejection of the application of the petitioner by order dated 07.09.2009 (Annexure P/1) for selection and appointment on contract basis on the post of Training Officer, Grade-III in Industrial Training Institute of the State Government and further seeks a direction to the respondents to post the petitioner on the post of Training Officer, Grade-III.
2. Shri Satyendra Sahu, learned counsel appearing for the respondents submits that Rule 8 of the Chhattisgarh Civil Services (Contract Appointment) Rules, 2004 (for short `the Rules, 2004') does not provide for rejection of a candidature of an applicant who has more than two living children, one of whom is born on or after 26th January, 2001. Thus, the rejection of the candidature of the petitioner is vitiated and is contrary to the statutory provisions of law.
3. The petitioner does not dispute the fact that she has more than two living children, one of whom was born after 26th January, 2001. On the other hand, Shri Bhaduri, learned Panel Lawyer appearing for the State/respondents submits that Rule 8 clearly provides that the eligibility and qualification as prescribed in Rule 5 of the Chhattisgarh Civil Service (General Conditions of Service) Rules, 1961 (for short, the Rules, 1961') would be applicable in case of appointment made under the Rules, 2004.
4. Sub Rule 6 of Rule 6 of the Rules, 1961 provides that no candidate shall be eligible for appointment to the service or any post if he has more than two living children, one of whom, is born on or after 26th January, 2001. Thus, the application of the petitioner was rightly rejected as the same comes within the purview of disqualification as enshrined in Rule 6 of the Rules, 1961.
5. On consideration of the rival contentions of the learned counsel for the parties, perusal of the pleadings and documents appended thereto, it is not in dispute that the petitioner was the mother of three children one of whom was born after 26.01.2001. Rule 8 of the Rules, 2004 provides for eligibility and qualification for appointment wherein it is provided that the eligibility and qualification for contract appointment shall be the same as prescribed in rule 5 and 6 of the Rules, 1961. Further sub rule (a) of Rule 8 of the Rules, 2004 prescribes for eligibility and qualification and not the disqualification. Whereas, Rule 6 of the Rules, 1961 prescribes for disqualification not for eligibility and qualifications. Rule 8 of the Rules, 2004 and Rule 6 of the Rules, 1961 both has to be read together as in Rule 8 of the Rules, 2004, it is prescribed that the eligibility and qualification shall be the same as prescribed in Rule 5 of the Rules, 1961.
6. Since the fact with regard to third child of the petitioner is admitted, Rule 6 of the Rules, 1961 would come into play, which makes the petitioner disqualified for appointment to a service or a post on the ground of having more than two children out of whom, one is born after 26th January, 2001.
7. Thus, the rejection of the candidature of the petitioner is just, proper and needs no interference.
8. Accordingly, the writ petition is dismissed at the motion stage itself.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 185 of 2005 PETITIONER : Kishore Kumar Agrawal.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri T.K.Tiwari, Advocate for thee petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 07th day of April, 2010)
1. By this petition, the petitioner seeks a writ/direction to the respondents to consider grant of benefits of regularisation w.e.f. 01.03.1998 with consequential benefits the date when the petitioner was appointed on the post of Assistant Teacher.
2. The indisputable facts, in nutshell are that on 9.3.1998, on the recommendation made by the selection committee, the petitioner was appointed on temporary basis for a period of two years on probation, whrein it was clearly stated that after completion of two years, the petitioner would be entitled to regular pay scale.
3. Learned counsel for the petitioner submits that since the petitioner has completed his probation within the period of two years satisfactory, the petitioner ought to have been given service benefits from the initial date of appointment i.e. 9.3.1998.
4. On the other hand, Shri Roy, learned Panel Lawyer appearing for the State/respondents submits that the petitioner would not be entitled to service benefits w.e.f. 9.3.1998 but from the date he was granted regular pay scale of Rs. 1200-2040/- after a period of two years from 9.3.1998.
5. Having considered the rival contentions of learned counsel for the parties, there is no dispute that the petitioner was appointed on 9.3.1998 on temporary basis for a period of two years probation on a fix pay of Rs 1200/-. It is also not in dispute by the respondents that there was no extension of probation period. Thus, the petitioner is entitled to seniority and other service benefits w.e.f. the date of his appointment as is well settled in a catena of decisions.
6. It is well settled that if the probation period is not extended and the employee has completed his probation period satisfactorily, seniority should be counted from the date of his initial appointment.
7.
8. In view of the above, and for the reasons stated hereinabove, the writ petition is allowed. The petitioner is entitled to all consequential benefits flowing from this order.
9. No order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 185 of 2005 PETITIONER : Kishore Kumar Agrawal.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri T.K.Tiwari, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 07th day of April, 2010)
1. By this petition, the petitioner seeks a writ/direction to the respondents to consider grant of benefits of regularisation w.e.f. 01.03.1998 with consequential benefits, the date when the petitioner was appointed on the post of Assistant Teacher.
2. The indisputable facts, in nutshell, JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 4990 of 2004 PETITIONER : Yasin Sajid Khan.
VERSUS RESPONDENTS : Director, Madhya Pradesh State Agriculture Vipadan Board & another. WRIT PETITION UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Smt. Hamida Siddique, Advocate for the petitioner.
Shri Sanjay K. Agrawal, Advocate for the respondent No. 1.
Shri R.S.Marhas, Advocate for the respondent No.
2.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 05th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that the petitioner, on allocation, was sent to the Chhattisgarh Rajya Krishi Vipnan Board, and working as an employee of Chhattisgarh Rajya Krishi Vipnana Board when the impugned order of stoppage of one increment without cumulative effect was passed by the Madhya Pradesh Rajya Krishi Vipnana Board, on 27.11.2003 (Annexure P/1). Smt. Siddique further submits that the order itself is void ab initio as when the order was passed, the petitioner was no longer the employee of the respondent No. 1.
2. Smt. Siddique further submits that the petitioner, being aggrieved with the order dated 27.11.2003 (Annexure P/1) has made a representation to the respondent No. 1. However, the same has not been considered and decided till date. She further prays that the aforesaid representation may be treated as an appeal and the same may be considered and decided by the respondent No. 2.
3. Shri R.S.Marhas, learned counsel appearing for the respondent No. 2 submits that the petitioner may file a fresh appeal before the respondent No. 2 which shall be considered and decided in accordance with law.
4. In view of the foregoing, the writ petition is disposed of with a direction to the respondent No. 2 that in the event, the petitioner prefers an appeal within a period of two weeks from today, the same may be considered and decided within a further period of four weeks from the date of receipt of the appeal. The limitation shall not come in way of entertaining and consideration of the appeal, if any.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 4973 of 2004 PETITIONER : Yasin Sajid Khan.
VERSUS RESPONDENTS : Director, Madhya Pradesh State Agriculture Vipadan Board & another. WRIT PETITION UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Smt. Hamida Siddique, Advocate for the petitioner.
Shri Sanjay K. Agrawal, Advocate for the respondent No. 1.
Shri R.S.Marhas, Advocate for the respondent No.
2.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 05th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that the petitioner, on allocation, was sent to the Chhattisgarh Rajya Krishi Vipnan Board, and working as an employee of Chhattisgarh Rajya Krishi Vipnana Board when the impugned order of stoppage of one increment without cumulative effect was passed by the Madhya Pradesh Rajya Krishi Vipnana Board, on 6.5.2004 (Annexure P/1). Smt. Siddique further submits that the order itself is void ab initio as when the order was passed, the petitioner was no longer the employee of the respondent No. 1.
2. It is informed at the bar that against the said order, an appeal has been preferred before the appellate authority on 25.06.2004 (Annexure P/12). The same is still pending consideration before the respondent No. 2 i.e. the appellate authority. The issue raised by the petitioner in this petition can be decided by the appellate authority. Therefore, at this stage, it would not be proper to entertain this petition when the statutory appeal is provided before the appellate authority i.e. the respondent No. 2 and the appeal is pending consideration.
3. Shri R.S.Marhas, learned counsel appearing for the respondent No. 2 submits that the pending appeal shall be considered and decided in accordance with law, on its own merits and perspective, as expeditiously as possible, preferably within a period of four weeks.
4. In view of the foregoing, the writ petition is dismissed as being not maintainable.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 6891 of 2009 PETITIONER : Gaurav Gupta.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Manoj Paranjpe, Advocate for the petitioner.
Shri A.V.Shridhar, Panel Lawyer for the State/respondent No. 1,2&6.
Shri Pawan Shrivastava, Advocate for the respondent No. 3 and 4.
Shri Arun Shukla, Advocate for the respondent No. 7 to 9.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 05th day of April, 2010)
1. At the very outset, learned counsel appearing for the petitioner seeks permission of this Court to withdraw this petition with liberty to approach the Collector by filing an appeal. He further submits that alongwith the appeal, the petitioner will also file an application for stay and till the said applications are decided by the Collector after due application of mind, the petitioners may be allowed to work as Shiksha Karmi Grade III.
2. Considering the totality of the facts, the petitioner is permitted to withdraw the present petition with liberty to approach the Collector under the Chhattisgarh Panchayat Shiksha Karmi (Recruitment & Conditions of Service) Rules, 2007. If the petitioner approaches the Collector under the provisions of statutory appeal within a period of 15 days from the receipt of a copy of this order, alongwith an application for stay, the limitation shall not come in way of entertaining and consideration of the appeal.
3. It is expected that the application for interim relief, if filed alongwith the appeal, shall be considered within a period of three weeks. For such period, the petitioner may be permitted to work as Shiksha Karmi Grade III.
4. In view of the foregoing, the writ petition is disposed of with the aforestated observations.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 6890 of 2009 PETITIONER : Akhilesh Singh Yadav & another.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Manoj Paranjpe, Advocate for the petitioners.
Shri A.V.Shridhar, Panel Lawyer for the State/respondent No. 1,2&6.
Shri Pawan Shrivastava, Advocate for the respondent No. 3 and 4.
Shri Arun Shukla, Advocate for the respondent No. 7 to 9.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 05th day of April, 2010)
1. At the very outset, learned counsel appearing for the petitioners seeks permission of this Court to withdraw this petition with liberty to approach the Collector by filing an appeal. He further submits that alongwith the appeal, the petitioners will also file an application for stay and till the said applications are decided by the Collector after due application of mind, the petitioners may be allowed to work as Shiksha Karmi Grade III.
2. Considering the totality of the facts, the petitioners are permitted to withdraw the present petition with liberty to approach the Collector under the Chhattisgarh Panchayat Shiksha Karmi (Recruitment & Conditions of Service) Rules, 2007. If the petitioners approach the Collector under the provisions of statutory appeal within a period of 15 days from the receipt of a copy of this order, alongwith an application for stay, the limitation shall not come in way of entertaining and consideration of the appeal.
3. It is expected that the application for interim relief, if filed alongwith the appeal, shall be considered within a period of three weeks. For such period, the petitioners may be permitted to work as Shiksha Karmi Grade III.
4. In view of the foregoing, the writ petition is disposed of with the aforestated observations.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1461 of 2010 PETITIONER : Nandkishore Koul.
VERSUS RESPONDENTS : State of Chhattisgarh & another.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri N.K.Chatterjee, Advocate for the petitioner.
Shri A.V.Shridhar, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 05th day of April, 2010)
1. The petitioner, by this petition seeks quashing of the order dated 19.03.2010 (Annexure P/1) whereby the petitioner has been directed to produce the caste certificate verified by the High Power Caste Scrutiny Committee, within a period of one week, as the petitioner has claimed selection and appointment on the post of Training Officer, Grade III, Welder Trade, being a scheduled tribe, against reserved post of S.T.
2. According to learned counsel for the petitioner, the petitioner has made an application before the High Power Caste Scrutiny Committee two months before, which is still pending consideration.
3. The Supreme Court, in Kumari Madhuri Patil and Another v. Addl. Commissioner, Tribal Development and Others58, has laid down the guidelines which reads as under:
"13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:
xxx xxx xxx
xxx xxx xxx
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
xxx xxx xxx
xxx xxx xxx"
4. The petitioner has not followed the guidelines issued by the Supreme Court in the aforesaid matter. Instead, at the fag end, the petitioner has made an application and expects that the High Power Caste Scrutiny Committee would consider and decide his application for verification of his caste certificate within a period of one week, which may not be possible when it is clearly directed in para 13(3) in Ku.
Madhuri Patil (supra) that the application for verification by the Committee shall be filed at least six months in advance before taking admission in educational institutions or applying for the appointment on the posts.
5. The petitioner ought to have made application for verification of his caste certificate six months before making an application for selection and appointment to the post. The impugned order is just, proper and needs no interference.
6. Accordingly, the writ petition is dismissed at the motion stage itself.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 1474 of 2002 PETITIONER : Dinesh Pandey & another.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Jeet Patel, Advocate for the petitioner.
Shri M.P.S.Bhatia, Dy. G.A. for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 05th day of April, 2010)
1. By this petition, the petitioner seeks following reliefs:
"i. This Hon'ble Court be pleased to send for the entire record relating to this stated allegation for its kind perusal. ii. This Hon'ble Court kindly be pleased to direct the respondent No. 3 to quash out the enquiry if it is pending.
iii. This Hon'ble Court be pleased to direct respondent No. 2 & 4 to return his (petitioner No. 1) own personal amount of payment and loan of Rs. 10,700/- to the petitioner No. 1.
iv. This Hon'ble Court be further pleased to grant examplory compensation amount to the petitioner No. 1 for suffering his unnecessary mental torture and financial crisis.
v. Any other relief, this Hon'ble Court deems fit and proper in the facts and circumstances of the case, in favour of the petitioner be also granted.
vi. Cost of the petition be also granted to the petitioner."
2. On perusal of the reliefs, it is not clear asto whether any enquiry is pending as the petitioner submits that if an enquiry is pending, the same may be quashed. The petitioner further seeks for a further direction to the respondents to return his personal amount of payment of Rs. 10,700/- and further, payment of exemplary compensation for his unnecessary mental torture and financial crisis.
3. The petition does not disclose any cause of action except that the petitioner was stopped at Jashpur Barrier and the respondent No. 4, without naming the concerned person, seized a sum of Rs. 10,700/- when the petitioner made it clear that he was transporting cattles in Tata Sumo to help the people not for any other purpose. Thereafter, the petitioners, who were constables were placed under suspension and subsequently they were reinstated also on 15.5.2002. Because of mental tension, caused by the respondent, son of the petitioner No. 1 met with an accident. The petitioner could not use his money as it was seized by the respondents at the barrier. The facts stated in the petition does not make out any case asto how the petitioners, being constable, were owning a Tata Sumo and how they were carrying cattle in their vehicle and whether they had any permission. The petitioners have made a self same statement that a sum of Rs. 10,700/- was seized at the barrier but not document has been filed in that regard nor any FIR was lodged. The entire case seems to be on the basis guessworks on wild and vague allegations.
4. Shri Bhatia, learned counsel appearing for the State/respondents submits that the facts have not been narrated properly and no case has been made out for interference of this Court. No cause of action arises from the facts stated in the petition.
5. It is well settled that without there being any specific pleadings and prayer, no relief can be granted. Thus, the case is dismissed for want of cause of action arising from unspecific facts and proper pleadings. The petition is frivolous.
6. Consequently, M(W)P No. 1056/2002, is also dismissed.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (C) No. 160 of 2010 PETITIONER : Atul Dubey.
VERSUS RESPONDENTS : Union of India & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------------- Present: Shri Rajeev Shrivastava, Advocate for the petitioner.
Smt. Fouzia Mirza, Assistant Solicitor General for the respondent No. 1 and 2
------------------------------------------------------------
---------------------------------------
ORDER (ORAL) (Passed on 06th day of April, 2010)
1. By this petition, learned counsel appearing for the petitioner seeks a direction to the respondent No. 2 to complete the enquiry on the complaint of the petitioner and take appropriate action thereafter.
2. Learned counsel for the petitioner relies on a letter dated 29th December, 2008 wherein it is stated that the change in address of company and authorised capital is being examined by the respondent No. 2.There is no mention of any enquiry on the basis of the complaint.
3. Smt. Mirza, learned Assistant Solicitor General appearing for the respondent No. 1 and 2, on instructions, submits that she has been informed that no enquiry is pending against any one in respect of the subject matter of the petition before the respondent No. 2. The respondent No. 2 is only examining the change of the address and the change of authorised capital in form No. 32.
4. In view of the above submission, the writ petition is disposed of with a direction to the respondent No. 2 to examine the matter with regard to change of address and authorised capital in form No. 32, as expeditiously as possible, preferably within a period of four months from the date of receipt of a copy of this order.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1449 of 2010 PETITIONER : Kirtandas & another.
VERSUS RESPONDENTS : The State of C.G. & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Rajesh Pandey, Advocate for the petitioner.
Shri P.K.Bhaduri, Panel Lawyer for the State/respondents 1&2.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 05th day of April, 2010)
1. The petitioner, alongwith 13 others had filed earlier W.P.(C) No. 163/2009 wherein the grievance of the petitioners was that the petitioners were not getting rice at the prescribed rate under the scheme. After hearing the learned counsel for the parties, the case was disposed of with a direction to the Collector, Raipur to look into the matter.
2. According to the petitioners, the order has been passed and the petitioners are getting rice at the prescribed rate. The petitioners seem to be aggrieved by the order dated 8.3.2010 passed by the competent authority i.e. Deputy Director, Panchayat & Social Welfare, Raigarh, whereby a warning was issued to the respondent No. 4, but no further action of removal was passed against the respondent No. 4. The petitioners have filed this petition seeking quashing of the order passed by the Deputy Director against the respondent No. 4.
3. It must be made clear that the petitioners are neither a government employee nor a people's representative except that they are residents of the same Gram Panchayat, Ganjai Bahuna. The petitioners seem to be aggrieved by the order of the Deputy Director, wherein a warning has been imposed upon the respondent No. 4 after proper examination. Why the petitioners are aggrieved, it is not known, however, it appears that the petitioners are having a personal grudge against the respondent No. 4. Despite having known that the respondent authorities have taken appropriate action against the petitioner by issuing a warning, the petitioners have again moved this Court for further relief against the respondent No. 4. Thus, it appears to be misuse and abuse of judicial process. The petitioners have no locus to question the order dated 08.03.2010 as the petitioners have nothing to do with the appointment or imposition of punishment on a member of Panchayat service.
4. The petition is bereft of merit and it appears that the petition has been filed to harass the respondent No. 4. Accordingly, the writ petition is dismissed with cost quantified to be Rs. 5000/- payable to the High Court Legal Aid Committee within a period of two weeks.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 2004 of 2003 PETITIONER : Smt. Laxmi Devi.
VERSUS RESPONDENT : National Thermal Power Corporation Ltd.
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Anand Pandey, Advocate for the petitioner.
Dr. N.K.Shukla, Senior Advocate with Shri Gautam Bhaduri, Advocate for the respondent.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 01st day of April, 2010)
1. Challenge in this petition is to the notice dated 19.03.2003 (Annexure P/4) for vacating the quarter No. A-
1503 Kaveri Vihar, allotted provisionally to the petitioner, and the letter dated 14/20.05.2003 (Annexure P/5) whereby the petitioner was again directed to vacate the quarter within a week's time from the receipt of the letter.
2. The facts, in nutshell, are that Late R.S.Gupta, husband of the petitioner was an employee of the respondent. Due to cancer, the husband died in the year 1999, in harness. During his service, the deceased was allotted quarter No. B-1025. On death of her husband, the petitioner made a request for allotment of alternate accommodation. Having considered all the aspects, the petitioner was allotted quarter No. A/1503 in Kaveri Vihar township with the following conditions :
"1. Allottee would be required to deposit rent, electricity and water charges at the following rates to NTPC Korba through cheque/DD in the name of NTPC, Korba.
i. Rent : 2.5 % of basic p.m. ii. Electricity : Rs. 8 p.m. iii. Water :
The cheque/DD will be deposited in the Finance Deptt. NTPC Korba under intimation to Estate Office.
3. In case for any reason Smt. Laxmi Gupta is not staying in the quarter, the quarter will be handed over back to Estate Office of KSTPS.
4. The allotment is further subject to the following conditions.
3.a Allottee shall be responsible for safety of all fittings and fixtures and liable for loss or damage to such fittings both civil & electrical.
3.b Allottee shall look after the quarter allotted to him by the Corporation and shall keep the quarter clean and tidy.
3.c Allottee shall not subject either on rent or without rent the accommodation allotted to him.
3.d) Allottee shall not construct any type of structure, temporary/permanent on/around the accommodation allotted without prior permission or make any addition/alternation without the specific approval of the appropriate authority. The management will have the right to get the addition alteration removed. All cost on this account will be born by him and the same shall be recovered.
3.e. The above quarter is temporarily allotted to you only upto the period of your posting with ____________Further due to any reason if you will leave the Vidyalaya the qtr. must be vacated & handed over to Estate Office.
3.f. Allottee shall not keep any cattle/poultry in the house.
3.g. Allottee shall not use the premise for any undesirable or anti-management activities.
3.h. Allottee shall abide by the security rules/orders prevalent.
4. Allottee shall abide by all the directives and instructions issued by the corporation from time to time.
5. Allottee shall not allow any outsider to enter the quarter who enter the township in violation of security regulation and does not hold a valid permission granted by the security department.
6. Allottee shall not allow any outsider to hold a meeting within premises under his occupation, prejudicial to interest of the Corporation and shall not participate in any such meeting.
7. Qr. No. B/1025 must be vacated with 07days."
3. Thereafter, after a period of four years, a notice was sent to the petitioner on 19.03.2003 stating therein that the petitioner has not paid the rental charges and electricity charges ever since the quarter was in her possession and as such, her possession was unauthorized for non payment of rent and electricity charges. Thereafter, the final notice was issued for vacating the quarter under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short `the Act, 1971') on 14/20.05.2003 (Annexure P/5). The petitioner filed the present writ petition seeking quashing of the impugned letter/notice with a prayer that the petitioner may be allowed to continue with the accommodation on payment of normal rate of rent i.e. @ 2.5 % of the basic pay including electricity charges and further that the children of the petitioners may be granted compassionate appointment.
4. Shri Pandey, learned counsel appearing for the petitioner submits that the petitioner, during pendency of this petition has deposited a sum of Rs. 11,110/- pursuant to the order dated 01.12.2006 passed by this Court. On 19.12.2007, this Court, having considered all the aspects of the matter, passed the following order:
"If the petitioner is bonafidely ready to comply with the order of the Court and she says for fixing the installments, then in all propriety it would be just and proper to fix the reasonable amount of installments, particularly, looking to the present condition of the petitioner and also looking to the job which she is doing.
Considering all these facts and circumstances and after hearing both the counsel for the parties, it is directed that now the petitioner shall deposit the amount of Rs. 40,000/- in 4 monthly installments of Rs. 10,000/- each to comply with the order of this Court and the first installment of Rs. 10,000/- shall be deposited within a period of 7 days from today and the subsequent installment shall be deposited within 10 days after completion of 30 days from the first installment and so on and so forth.
If the petitioner commits any default in making payment as per above mode, the stay order granted earlier shall automatically stand vacated without further reference to the Bench."
5. Shri Pandey further submits that the petitioner has further deposited a sum of Rs. 40,000/- pursuant to the order dated 19.12.2007
6. On the other hand, Shri Shukla, learned Senior Counsel appearing with Shri Gautam Bhaduri, counsel for the respondent submit that the petitioner was allotted quarter on humanitarian ground. The petitioner was allowed to continue for more than four years without any payment towards rent and electricity charges. However, no order under provisions of the Act, 1971 could be passed on account of the stay granted by this Court on .11.07.2003.
7. Be that as it may, on consideration of the submissions made by the parties and perusal of the documents, it is evident that the widow of the deceased employee is not entitled to retain the official accommodation for more than four months. However, she was allowed to retain for four years. Pursuant to the order of this Court, the petitioner has continued till date in the official accommodation unauthorisedly. In respect of payment of rent and electricity charges, no final order can be passed as the matter is still pending consideration under the Act, 1971. The claim of the petitioner that the rent should be only 2.5% of the basic pay including electricity charges is not sustainable in law as the petitioner is not an employee of the respondent-Corporation. The petitioner is admittedly an employee of the State Government. Thus, the contention of the petitioner is without any basis and deserves to be rejected.
8. Since the matter is still pending consideration under the provisions of the Act, 19971, the petitioner may file reply to the impugned notice at the earliest and the authorities may consider the deposit of rental and electricity charges and thereafter after pass appropriate orders without being influenced by any observations, if any, made hereinabove.
9. The petitioner shall not be disturbed till the disposal of the case before the Estate Officer, subject to payment of regular rent and electricity charges and arrears, if any, the same may also be deposited within a period of four months.
10. With the aforesaid observation and direction, the writ petition is disposed of.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1374 of 2010 PETITIONER : Ashok Mishra.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.
SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri Vinod Deshmukh, Advocate for the petitioner.
Shri A.V.Shridhar, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 05th day of April, 2010)
1. Learned counsel appearing for the petitioner submits that in view of the order dated 31.03.2010 and 01.04.2010 passed by the respondent authorities whereby the petitioner has been relieved from his present place of posting, this petition has become infructuous.
2. Learned counsel appearing for other side does not controvert the above submission.
3. Accordingly, the writ petition is dismissed as having become infructuous.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 4663 of 2004 PETITIONER : Krishna Kumar Yadav.
VERSUS RESPONDENTS : The State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Shri F.S.Khare, Advocate for the petitioner.
Shri A.V.Shridhar, Panel Lawyer for the State/respondents.
------------------------------------------------------------
--------------------------------
ORDER (ORAL) (Passed on 01st day of April, 2010)
1. The petitioner seeks a direction to the respondent authorities for grant of compassionate appointment to the petitioner on the death of his grand father on 28.09.2000, while serving as peon in Tahsil Office, Raigarh. The petitioner further challenges the order dated 13.10.2004 (Annexure P/12) whereby the application of the petitioner for grant of compassionate appointment has been rejected on the ground that since the grand father of the petitioner died before 1.11.2000, and further, in the policy dated 10.06.2003, there is no provision to grant compassionate appointment to the grand children of the deceased employee.
2. Shri Khare, learned counsel appearing for the petitioner submits that since the petitioner was looking after his grand father, though the father and mother of the petitioner both are happy and alive, therefore, the petitioner became dependent on his grand father and the petitioner ought to have been granted compassionate appointment.
3. On the other hand, learned counsel appearing for the State/respondents submits that the compassionate appointment is granted to the dependent members of the family when on death of the employee in harness, the family of the deceased becomes penurious. It is a case where firstly the petitioner was not the dependent member of deceased employee as normally, the children or the wife are dependents of the deceased, not the grand children. It is further not a case where the petitioner has left the house of his parents and he was living with his grand father separately. Further, there is no policy to consider the case of grand children for appointment on compassionate basis.
4. The above contention of the learned counsel for the State/respondents merits acceptance as appointment on compassionate basis not a method to grant a regular employment as such employment is dehors the constitutional scheme and is a backdoor entry. In the case on hand, the petitioner has failed to establish his dependency on his grand father.
5. Even otherwise, the deceased employee died on 28.09.2000 and thereafter, the petitioner has sustained himself for about 10 years. Thus, the very object of the compassionate appointment does not survive at this stage.
Appointment on compassionate ground is not a method of recruitment, but is a facility to enable penurious family to tide over the sudden financial crisis which arose on account of death of the sole bread earner. (See: Haryana State Electricity Board and another v. Hakim Singh59, State of Manipur v. Md. Rajaodin60, and State of J & K and others v.
Sajad Ahmed Mir61 ).
6. In view of the foregoing, the writ petition is dismissed.
7. No order asto costs.
JUDGE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 3351 of 2003 PETITIONER : Bhojendra Kumar.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
------------------------------------------------------------
-------------------------------- Present: Smt. Renu Kochar, Advocate for the petitioner.
Shri A.V.Shridhar, Panel Lawyer for the State/respondent No. 1 & 2 Shri Ghanshyam Patel, Advocate for the respondent No. 3.
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ORDER (ORAL) (Passed on 01st day of April, 2010)
1. The petitioner seeks a writ quashing of the merit list dated 30.08.2003 (Annexure P/1) whereby the petitioner could not be selected on the post of Samvida Shikshak, Grade III.
2. According to the petitioner, the petitioner being a resident of village Baima, Police Station Khadgawan, District Koria, pursuant to the advertisement, made an application for selection and appointment on the post of Samvida Shikshak, Grade III. After the selection process, merit list was prepared in which the petitioner's name found place and thereafter, he was called for interview. Since the petitioner was allotted zero marks in the interview, the petitioner could not be selected and appointed on the aforesaid post.
3. The sole contention of learned counsel appearing for the petitioner is that the petitioner has done very well in the interview and all the questions asked by the interviewers were replied properly, still the petitioner has been awarded zero marks. Thus, the entire select list may be quashed.
4. Per contra, Shri Shridhar, learned counsel appearing for the State/respondent No. 1 and 2 submits that the awarding of marks in interview is exclusively for the interviewers. By making a selfsame statement that the petitioner has replied to all the questions, it cannot be held that the petitioner was qualified and the marks allotted to the petitioner was wrong.
5. None have chosen to appear on behalf of the respondent No. 4 to 7, despite service of notice.
6. On perusal of the documents and consideration of the submissions made by learned counsel appearing for the respondent No. 1 to 3, and further response filed by the respondent No. 7, it is found that the petitioner was awarded 33.33 marks on the basis of marks obtained in the Higher Secondary School, for Scout-Guide/NCC, 5 marks were awarded, for knowledge in local language, which was examined in the interview, zero marks was awarded. Accordingly, the petitioner in total was awarded 36.33 marks. In the final merit list, the petitioner was not selected.
7. The contention of the petitioner that since the petitioner has replied all questions properly, the petitioner ought to have been awarded some marks, is without any basis and is frivolous. The interview was conducted for knowledge of local language i.e. Chhattisgarhi. The interviewers, after using their wisdom have awarded zero marks to the petitioner for knowledge in local language. This is not for the court to substitute the decision of the interviewers or the expert bodies particularly, in case of interview when it does not appear to be unreasonable or discriminatory.
8. Looking from all angles, the petitioner is bereft of merit and is accordingly dismissed.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 3524 of 2004 PETITIONER : Mohammad Iqbal Ather.
VERSUS RESPONDENTS : State of Chhattisgarh & another.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri Harsh Wardhan, Advocate for the petitioner.
Shri A.V.Shridhar, Panel Lawyer for the State/respondents.
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--------------------------------
ORDER (ORAL) (Passed on 01st day of April, 2010) I.A. No. 2183/2005, this is an application for taking document on record. The application is ordered as prayed for.
1. Learned counsel appearing for the petitioner submits that the petitioner who was working as Time Keeper, may be treated as Class IV employee for the purpose of other service benefits like retirement at the age of 62 years. It is further the case of the petitioner that other benefits of Class IV employees are given to him but he is being treated as Class III employee. Accordingly, a writ may be issued to the respondents to allow the petitioner to retire at the age of 62 years, treating him as Class IV employee.
2. On the other hand Shri Shridhar, learned Panel Lawyer appearing for the State/respondents submits that for all practical purposes, Time Keeper is a class III employee. If some benefits of class IV employee are given to the petitioner, that does not confer any status of Class IV employee upon the petitioner. Even otherwise, if an employee is appointed as Time Keeper in Class III category, admission to Class IV category at the instance of one employee is not permissible under the constitutional scheme. Thus, the petitioner cannot be treated in any way as Class IV employee for any purposes, even if he is getting other benefits which are normally granted to class IV employees.
3. The further contention of the petitioner is that in case, the petitioner is treated as class III employee, he should be granted the benefits of class III employee, however, there is no specific ground or prayer made in the petition and as such, submission of the petitioner on this issue cannot be considered and decide for want of specific prayer and grounds. The respondent may not be in a position to advert to the same. It is well settled principle of law that the respondents are not expected to reply more than what has been pleaded in the petition.
4. On perusal, it is found that the letter dated 09.02.2004 (Annexure P/4) filed by the petitioner wherein request was made by the then Secretary and a proposal was made by the then Secretary, General Administration Department to treat Time Keeper contingency employees as class IV employees. But on the said proposal, no decision has been taken and as such, the Court cannot direct the Government to take a policy decision with regard to service condition of an employee. The petitioner on his request is granted liberty to agitate the issue, if so advised, before the appropriate authority as it is for the State Government to take a policy decision and pass appropriate orders. This Court may not pass any such order directing the State authorities to treat which employee under which category.
5. For the reasons stated hereinabove, the writ petition being devoid of merit is dismissed with the aforestated liberty.
6. Consequently, M(W)P No. 3074/2004 and 694/2005, are dismissed.
JUDGE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 159 of 2005 PETITIONER : Lambodar Paikara.
VERSUS RESPONDENTS : The Union of India & Others.
WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri Ajay Mishra, Advocate for the petitioner.
Shri Kashif Shakeel, Advocate for the respondent No. 1.
Shri M.P.S.Bhatia, Dy. G.A. for the State/respondent No. 2.
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ORDER (ORAL) (Passed on 01st day of April, 2010)
1. The petitioner seeks a direction against the Chhattisgarh Rajya Krishi Vipanan Board, Raipur for considering his case for appointment on compassionate basis on the ground that the father of the petitioner namely Bhaskar Singh Paikara, working as Chowkidar in Krishi Upaj Mandi Samiti, Pithora, District Mahasamund, died in harness on 20.10.1999.
2. It appears that the application of the petitioner was considered and rejected on 09.12.2003 (Annexure P/3) by the respondent No. 4, on the ground that Chhattisgarh Rajya Krishi Vipnan Board was not in existence at the time of death of the father of the petitioner and as such, his application could not be considered. The present petition has been filed without impugning the order dated 09.01.2003 and further the Board has not been impleaded as party- respondent. The petitioner cannot claim relief against a party, which has not been impleaded as a party in the petition, and further without impugning the order dated 09.12.2003, passed in his application. Thus, the petitioner is not entitled to any relief, as prayed for in this petition.
3. Accordingly, the writ petition is dismissed. No order asto costs.
JUDGE Amit Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 4649 of 2004 PETITIONER : Rajesh Chhedavi.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Smt. Renu Kochar, Advocate for the petitioner.
Shri P.K.Bhaduri, Panel Lawyer for the State.
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ORDER (ORAL) (Passed on 01st day of April, 2010)
1. The petitioner questions the legality and validity of the order dated 08.11.2004 (Annexure P/1) on the ground that the less qualified persons have been appointed ignoring the claim of the petitioner on the post of Patwari.
2. The impugned order was passed on 8/9.11.2004 (Annexure P/1). The petitioner has preferred this writ petition on 27.11.2004. The matter was listed for hearing on 10.02.2005. None appeared in the first round, thereafter, in the second round also, none appeared on behalf of the petitioner. However, the matter was adjourned. Thereafter, the petitioner has not taken any steps till date. Now this petition has become infructuous on a simple ground that the candidates appointed in November, 2004 must have completed their training and after that they must have been appointed at various places and further must have been confirmed on their respective posts after completion of probation period. Thus, at this stage, for want of default on the part of the petitioner, the appointment of other candidates cannot be set aside on any other ground, whatsoever.
3. Accordingly, the petition having become infructuous, is dismissed. Consequently, M(W)P No. 4958/2004, is also dismissed.
JUDGE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 5883 of 2005 PETITIONER : Subrat Sana.
VERSUS RESPONDENTS : The State of Chhattisgarh & Others.
Writ Petition Under Article 226 And 227 Of The Constitution Of India SB: Hon'ble Shri Satish K. Agnihotri, J.
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------------------------------------- Present: Shri Parag Kotecha, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondent No. 1, 2 & 6.
Shri Bhaskar Payasi, Advocate for the respondent No. 4.
Shri B.D.Guru, Advocate for the respondent No. 5.
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ORDER (ORAL) (Passed on 01st day of April, 2010)
1. By this petition, the petitioner seeks a writ quashing/setting aside the resolution dated 20.06.2005 (Annexure P/5) and the order dated 27.6.2005 (Annexure P/6) whereby the respondent No. 4 was declared as Panchayat Secretary for the Gram Panchayat, Ghoda Gaon, Block Koyalibeda, District Uttar Bastar, Kanker.
2. Shri Kotecha, learned counsel appearing for the petitioner submits that in the resolution dated 12.04.2005 (Annexure P/1) of Gram Panchayat, Ghodagaon, having regard to the essential qualification at that point of time which was class 10th pass certificate, the petitioner was selected for the post of Panchayat Karmi and found his name at serial No. 1. Thereafter, the resolution as required was not placed before the Gram Sabha for approval and the resolution died its own death as no effect could be given. Subsequently, on 21.04.2005 (Annexure R/5-1), the qualification for appointment on the post of Panchayat Karmi, was amended and increased to 12th pass. Thereafter, the Gram Panchayat passed resolution on 16.6.2005 on the basis of minimum essential qualification i.e. class 12th pass, the respondent No. 4 was recommended and after approval of the Gram Sabha by order dated 27.6.2005 (Annexure R/5-3) passed by the Deputy Director, Panchayat and Social Welfare, was selected for the post of Panchayat Secretary.
3. Shri Kotecha further submits that it is well settled principle of law that once the selection process is started, no amendment either in the qualification or in other process may be made during selection process, till it results into selection of a candidate. The process was initiated by inviting applications on 12.04.2005 when the resolution was passed. At that point of time, the essential minimum qualification was class 10th pass and the petitioner was placed at serial No. 1. The respondent authorities ought to have taken resolution to the Gram Sabha for approval and thereafter, the appointment order should have been passed. The authorities abandoned the process in between and after amendment in the essential qualification, second resolution was held on 16.6.2005 and the respondent No. 4 was recommended for appointment and the resolution was thereafter approved by the Gram Sabha and consequently, the appointment order was passed. Even in the second resolution, other meritorious candidates have been ignored. The petitioner was not under consideration in the second resolution dated 16.6.2005. Shri Kotecha further contends that the statement of the respondent No. 5 that the resolution dated 16.6.2005 has been passed by the Gram Sabha is contrary to the records as is evident from several affidavits sworn by the Panchas of the Gram Sabha vide Annexure P/9. Thus, the appointment of the respondent No. 4 is vitiated.
4. On the other hand, Shri Guru, learned counsel appearing for the respondent No. 5 submits that the affidavits filed by different panchas after approval of resolution in Gram Sabha cannot be taken into consideration as this is not a fact finding Court. The resolution was passed in accordance with law which is evident from the document (Annexure R/5-2) wherein the signatures of all the panchas are present who were present at the time of passing the resolution.
5. Shri Bhaskar Payasi, learned counsel appearing for the respondent No. 4 adopts the submissions made by Shri Guru and submits that clause 3.3. of Annexure P/3 i.e. Panchayat Karmi Scheme makes it clear that in addition to the minimum essential qualification, other qualifications may also be added. Thus, from all angles, the allegations of the petitioner are without any basis and deserves to be rejected.
6. On consideration of the rival submissions made by learned counsel appearing for the parties, it is evident that the petitioner was found at serial No. 1 in the resolution dated 12.04.2005. It is further evident that the essential qualification prescribed in the Panchayat Karmi scheme was 10th class pass certificate or the High School Certificate under the 10+2 scheme. Clause 3.3 of the scheme wherein it is provided that additional qualification may be added, cannot be ignored. The contention of the petitioner that though the resolution dated 12.04.2005 was not given effect but the resolution dated 16.6.2005 which according to certain affidavits filed by the panchas, was never held, may be treated as continuation of the first selection process and by amendment, this cannot be changed, deserves to be rejected on a simple ground that in case of appointment of Panchayat Karmi, the first and foremost test is consideration in general meeting of the Gram Panchayat. The first resolution dated 12.4.2005 could not be given effect to. That is why the process was abandoned. The second process cannot be held as continuation of the first process and thus, the subsequent amendment does not change the rule of game after the game has started. In the second resolution, the petitioner was not found fit for selection and as such, he has no locus.
7. Even otherwise, to question the appointment of the respondent No. 4, the issue that whether panchas of the gram Panchayat were not present, cannot be decided by this Court. Even otherwise, having considered the fact that the appointment was made in the year 2005 and thereafter, the respondent No. 4 has been working on the post, the petitioner has not made out any case for quashing of the above stated orders.
8. Further, a resolution of a Gram Panchayat/Gram Sabha cannot be termed as final order as it is well settled principle of law that the resolution is a mere guidelines. Resolution is an expression of the opinion of the members who have come to a unanimous conclusion but the `resolution' by itself does not have the force of law. Even if a wrong recommendation has been made, it is for the appointing authority to pass the order. In case of the petitioner, no order has been passed at any point of time appointing him on the post and as such, he has no right to appointment on the basis of resolution, which has been held in the nature of recommendation and further, no formal order was passed.
9. The Supreme Court, in New India Assurance Co. Ltd v. Nusli Neville Wadia & another62, while considering a resolution passed by the Government of India for eviction of the unauthorized occupants from the occupancy of the premises on the basis of the resolution passed by the Government, the Supreme Court observed that the resolution are mere guidelines and not controlled by the statutory provisions.
10. In view of the above and for the reasons stated hereinabove, the writ petition is dismissed.
11. There shall be no order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 4071 of 2004 PETITIONER : Anup Lakra.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri Jai Prakash Shukla, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
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ORDER (ORAL) (Passed on 01st day of April, 2010)
1. Learned counsel appearing for the petitioner submits that pursuant to the advertisement 16.10.2004 (Annexure P/1), the petitioner made an application for selection and appointment on the post of Lab Technician, in Government Polytechnic College, Ambikapur. The petitioner was duly selected as is evident from the order dated 09.09.2003 (Annexure P/6) which was published in the news paper.
Despite his selection, the petitioner did not receive any appointment order in person and as such, the right of the petitioner to appointment has been infringed. Thus, the respondents may be directed to appoint the petitioner on the post of Lab Technician.
2. Shri Tiwari further submits that the respondents have no right or power to change the roster after having once the select list has been prepared and thus, the petitioner has legitimate expectation after his selection and appointment and non-appointment of the petitioner on the post is violative of Article 14, 16 and 21 of the Constitution of India.
3. On the other hand, Shri Roy, learned Panel Lawyer appearing for the respondent No. 1 to 3 would submit that after the process of selection, it was pointed out that the post was reserved for Scheduled Tribe (Female) candidate. Thus, the petitioner could not be appointed on the post being a male Scheduled Tribe candidate. Accordingly, a fresh advertisement was issued. Thus, the select list was cancelled on the basis of a complaint made by the SC/ST Officers/Employees Union on 20.09.2003 (Annexure R/1). Thereafter, enquiry was made. In the enquiry report submitted by the Chief Executive Officer, Jila Panchayat, Ambikapur, it was found that against six post of Lab Technician, 5 persons are already working and one remaining post was reserved for the female candidate. Thus, the appointment has been followed strictly in accordance with law and roster system. Even otherwise, the petitioner has no right to appointment on the basis of selection. Thus, the contention of the petitioner that it is violative of Article 14, 16 and 21 of the Constitution of India, is without any basis.
4. In the enquiry report dated 19.01.2004 (Annexure P/10), the case of the petitioner has already been considered. Thereafter, it was reported that the advertisement was confined only to the local area and as such, it was not available to all the similarly situated candidates throughout the State. Thus, the no appointment may be made.
5. Learned counsel appearing for the petitioner relies on a decision of the Supreme Court, rendered in Director, SCTI for Medical Science & Technology & another v. M.Pushkara63, is not applicable to the facts of the case on hand as in the present case, the selection of the petitioner itself was found defective and not in accordance with law. It is further not a case where the select panel has been ignored or declined for appointment on the whims of the officers, as was done in M.Pushkaran (supra).
6. It is a trite law that a candidate, even if, he is successful in the select list, has no indefeasible right to appointment. If the petitioner has no indefeasible right to appointment, no writ can be issued directing the respondents to give appointment to the petitioner or any other person.
(See Ludhiana Central Co-operative Bank Ltd. v. Amrik Singh and other64 and Union of India and others v. Kali Dass Batish and another65).
7. The ratio laid down in the cases, as aforestated, has been reiterated in Rakhi Ray & Others v. High Court of Delhi & Others66
8. In view of the above and for the reasons stated hereinabove, the writ petition fails and is dismissed.
9. There shall be no order asto costs.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 5289 of 2009 PETITIONER : Smt. Madhuri Jawalkar.
VERSUS RESPONDENTS : State Govt. of Chhattisgarh & Others.
PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri Somkant Verma, Advocate for the petitioner.
Shri N.N.Roy, Panel Lawyer for the State/respondents.
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ORDER (ORAL) (Passed on 01st day of April, 2010)
1. Learned counsel appearing for the petitioner submits that the issue with regard to transfer of the employees on account of Rationalisation policy came up for consideration before this Court in W.P.(S) No. 4315 of 2009 (Smt. Jitender Lamba v. State of Chhattisgarh & Others) and other connected matters, wherein the State has clearly stated that the case of the petitioners therein would be considered afresh after affording an opportunity of hearing to the parties concerned to examine whether the transfer orders were passed in accordance with the policy and till that time, the petitioners shall not be disturbed.
2. Learned counsel appearing for the petitioner submits that the petitioner is similarly situated to that of in Smt. Jitender Lamba (supra), the petitioner's case is covered by the order, as aforestated.
3. Learned counsel appearing for the State/respondents does not controvert the above submission.
4. In view of the above, the writ petition is disposed of in the terms of order passed on 12th November, 2009 passed in Smt. Jitender Lamba (supra).
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 4676 of 2004 PETITIONER : Smt. Chameli Bai & Others.
VERSUS RESPONDENTS : The State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri Awadh Tripathi, Advocate for the petitioner.
Shri A.V.Shridhar, Panel Lawyer for the State.
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ORDER (ORAL) (Passed on 01st day of April, 2010)
1. Learned counsel appearing for the petitioners, on instructions, submits that the petitioners do not want to press this petition and seek permission of this Court to withdraw this petition.
2. Learned counsel appearing for other side have no objection.
3. It is ordered as prayed for.
4. Consequently, the writ petition is dismissed as withdrawn.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 3232 of 2009 PETITIONER : Anup Kumar Mishra.
VERSUS RESPONDENTS : Central Bank of India & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri Varun Sharma, Advocate for the petitioner.
Shri N.N.Roy, Advocate for the respondent No. 2 and 4.
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ORDER (ORAL) (Passed on 01st day of April, 2010)
1. Learned counsel appearing for the petitioner submits that the petitioner has filed this petition impugning notice dated 23.05.2009 (Annexure P/1) whereby imposition of penalty was proposed. During pendency of this petition, the final punishment order has been passed and this petition has become infructuous.
2. Shri Sharma further submits that the petitioner may be permitted to take up the matter to the appellate authority against the final order of punishment of removal from service.
3. Be that as it may, it is not necessary to grant any liberty to the petitioner as this is for the petitioner to take recourse to any other forum, whatsoever may be available to the petitioner under the provisions of law. Since the final order of punishment is not under challenge in this petition, this petition has become infructuous.
4. Accordingly, the writ petition is dismissed as having become infructuous.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 664 of 2010 PETITIONER : Abhishek Dwivedi.
VERSUS RESPONDENTS : State of Chhattisgarh & Others.
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri Sameer Singh, Advocate for the petitioner.
Shri V.V.S.Moorthy, Dy. A.G. for the State/respondents.
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ORDER (ORAL) (Passed on 01st day of April, 2010)
1. Learned counsel appearing for the petitioner, on instructions, seeks permission of this Court to withdraw this petition with liberty to prefer a statutory appeal before the respondent No. 3.
2. It is ordered accordingly.
3. Consequently, the writ petition is dismissed as withdrawn with the aforestated liberty, if so advised.
JUDGE Amit HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 1496 of 2002 PETITIONERS : All India Trade Union of Food Corporatoin Employees & Workers & others.
VERSUS RESPONDENTS : Food Corporation of India India & Others.
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J.
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-------------------------------- Present: Shri V.G.Tamaskar, Advocate for the petitioners.
None for the respondents.
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ORDER (ORAL) (Passed on 01st day of April, 2010)
1. Learned counsel appearing for the petitioners, on instructions, submits that the petitioners do not want to contest this petition on merits at this stage. However, a direction may be issued to the respondent authorities to consider the pending representation dated 20.04.2001(Annexure P/6) as expeditiously as possible.
2. It is ordered accordingly.
3. Consequently, the writ petition is disposed of with a direction to the respondent authorities to consider and decide the representation of the petitioners, as aforestated, in accordance with law and on its own merit and perspective, at the earliest.
JUDGE