• •;.'„ylS^ mCH COURT OF CHHATHSGARH: BILASPUR :"±-~ ::::%^r"^h- WRIT PETITION (St N0.2891 OF 2005 PETITIONER RE^^QNDENTS 1. 2. 3. 4. Shiv Charan Tiwee, son of Shri Trilochan Ran, Resident of Behrsqiara, Tahsil Dharamja^aili, District Raigarh. Versus State of M.P., tooi^t Secretary, School Education Depariment, Ministry of School Education Department, Mmtealaya, Vallabh Bhawan, Bhopal. Director, PubUc Instruction, Sa^uda Bhawan, Bhopal(MP). Deputy Director, Education, Education Department, Dharamjaigarh, District RagaA Chief Executive Qfficer, District Panchayat and Additional Director, Publie lastruction, Raigarh. 5. The State of Chhattisgarit, ftroudi <he Seeretary, Departaeat of Education & Public fastructicms, D.K.S. Bhawan, Raipur (CG). 6. The Director, Public Ihsteuctions, Govemment ofChhattisguh, D.K.S. Bhawan, Raipur (CG). Singte Bench : Hon'Me Shri Satish K. Agnihotri, J. Present:- Shri A.K. Prasad, counsd for the petitioner. Ms. Sumta Jain, Pqnel Lawyer for the State. ORALQRBBSfc. (Passed on this 26tt day' ofMareh, 2009) Wifli the consent ofleamed counsel <q)peam^ for flie parties, Ihe petition is heard finally. 2) Leamed counS^l appeaimg, for flie petitioner submits that Ae petitioner was appointed as Peon vide order dated 31-3-1995 (Annexure R/l) on Ae pay scale of Rs. 750-945/- in accordance with flte circular dated 10.6.94. Aceordmgly, flie petitioner who bappens to be die nephew oflhe widow of the deceased emptoyee, namely, Trilochan Ram was yyea eompassionate appoinlment Subsequently, vide order dated 28.7.98 (Amiexure A/4), the appointment of <he petftioner was cancelled in view offhe cireular dated 10.9.95. The cjreiilar dated 10.9.95 provided that Ae appointment of olher relations, namely, grand dau^rter, son-in-iaw, brofher-in-law, brofher, sister, nephew, niece, dau^iter-in-law, sister-in-law ete. was not in accordance with law. Therefore, appointment made after 3.1.95 on tfae compassionate basis should be declared as illegal and be accordingty cancelled. 3) Mr. A.K. Prasad, leamed connsel appearing for Ihe petiti<mer submits fliat it is well settled fliat flie eircular or the role or any ofher statutory provision mcluding 2-.' :lH/K.^'y ^^^ Gowri flie rules ftamed under Article 309 ofAe Constitution of todia, camiot be gh^n Ae retrospective effect to take away ihe ri^tfs accrued in favour oflhe Govemment eng»toyee.to gupport ofhis contention, he has reKed on adecision oflhe SwTMne CourtinP. Tulsi Das and others vs. Govt ofA.P. and others . 4) Per contra, Ms Sunita Jain, leamed Panel lawyer appearing for flie State submits fliat <he appointment of ihe petitioner is even otherwise illegal and <he retrospective effect can be given to the circular dated 10.6.94. 5) I have heard leamed counsel <CTearing for Ae parties, penued the pleadit^ and documente ^tpended thereto. It is evident Aat flie flipointment ofthe petitioner on flie post of Peon vide order dated 31-3-1995 was inaccordance wifli the cireular dated 10.6.94. Clause 17 ofthe cireular dated 10.6.94 reads as under:- "Tfa siw'Stw ^SRS ^ ftsrar w vS^ wn% ga m 'spft 'QV^t ^<d"Hld W^ ^ ISP? 'r g^ ahr qg Tgii 'ft !?ll«f<^«^9S V^ ^ feq VSf ••f Vl Vtt ^t SSfSR shn fe qs I^A ^ api ^ui<fl<^ Ra^<;i'( wt Pr.gfer ^ f$p; 'iiiiRxt %? fl^ft uft a'frft ^'i'fiioi ^<r ^f^i ^m 'ii*ii<b-t ^sv^ gnr 6<!)<<>«ii4 "w wtt B^IT i 6) Tlie Sqpreme Court in P. Tulsi Das (saftta) obsCTVed ag under:- "14.........Consequently, we are unable to agree tfaat Ae legislature could have validly denied fliose rights acquired by the appellants relrospectively not only depriving diem of such r^its but also enact a provision to repay and restore iba amounts" paid to them to fte State. The pravisions offlie Act, though can be valid in its operatioa "no futuro" cannot be held vaMd insofir as it purports to restore status quo ante for the past period taking awsy the beneflts already available, accrued and acquired by them........" 7) The circula- datsd 10.9.95 declaring all fte qipointments not in accordance with law has been issued without any basis, wifli reteospective efifect. The circular, in view ofsettled position oflaw as stated above, cannot take away fhe rights ofdie petitioner, which has accroed on account ofhis appointment in aceordance wilh die circulardated 10.6.94. 8) As a result and for Ihe reasons stated hereinabove, flris petition is allowed. No order asto costs. -— Sd/- Satish K. Agnihotn Judge _ 4 (2003) 1SCC 364