waiwsssffffs^ VSSSSiSSKiS&sKS^ •8iB8K8^'fl°sflS'':* 1SSHSiSi%;^;^I •>S8SS%PSSfts'l:®fe WfWf ISUSS ^•"'e^:;^ ^'^^v^: ^Wi^^S MA'':.v';.;'/S:%% l*%Sf®%^ 'i'^%^^|irIt%SSWB81iB :1^.'?%^S&'^'?;^^ HIGH COURT OF CHHA1TISGARH : BILASPUR WRIT PETITION No.5183 of 1989 AF^ 7g. 2-'° PETITIONER Ravi Shanker Penkra RESPONDENTS Versus State ofMadhya Pradesh & Others ^ 'ost for pronouncement ofjudement on . ./fi.day ofFebruary, 2010. Sd/- Satish K.Agaiho! Judge r: Ms^ •!! 'it HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETmON No.5183 of 1989 PETmONER RaviShankerPenkra Versus RESPONDENTS State ofMadhya Pradesh & Others (Petition under Articles 226 & 227 ofthe Constitiition oflndia) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present: - Shri Vivek Ranjan Tiwari, counsel for the petitioner. Shri M.P.S. Bhatia, Dy. Govt. Advocate forthe State. Shri Sanjeet Sharma, counsel forthe respondents No.2 & 3. JUDGMENT 1-^. (Delivered onthis ...?.<?.. day ofFebmary, 2010) 1. With the consent of leamed counsel appearing for the parties, the petition is heard finaiiy. 2. By this petition- the petitioner seeks a direction to the respondent authorities for his reinstatement in service yf.e.f. 3.12.1988 i.e. fi-om fhe date ofhis removal with fall back wages and other consequential benefits. 3. The facts, in nutshell, for disposal of the case, are fhat pursuant to the advertisement dated 29.9.1983 (Annexure-1) published m the daily newspaper 'Deshbandhu', applications were invited for appointment on various posts. The petitioner along with others submitted applications, whieh resulted into his appointment on fhe post of Safai Daroga by order dated 12.9.1986 (Annexure-3). However, by order dated 3.12.1988 the w petitioner was removed from the service on the ground that his appointment was not made in accordance with the proper procedure. Thus, this petition. "f.ts'*"<^ ^-'"N1 '\ B»iB«.. '']'». ^.^'' k.3:!^^' Shri Tiwari, leamed coimsel appearing for the petitioner, submits Ihat the stand ofthe respondents No.2 & 3 that fhere was no appomtment pursuant to fhe advertisement dated 29.9.1983 and fiirther, no advertisement for makingappomtment subsequently was issued, is contrary to the record. The appointment of the petitioner was made in continuation of the advertisement dated 29.9.1983. Shri Tiwari farther submits fhat the second ground that there was no sanction to the post is not correct, as fhe letter dated 16.11.1983 (Annexure-2) clearly indicates that there was one post sanctioned for Satai Daroga against wliich the petitioner was appointed. On the other hand, leamed counsel appearing for the respondents No.2 and 3 submits that the advertisement (Aimexure-1) is doubtfal as photo copy ofthe same has not been annexed and there was no sanction ofthe post. The appointment of the petitioner was contraiy to Rule 11 of the Madhya Pradesh Municipal Employees (Recmitment & Conditions of Service) Rules, 1968 (for short 'the Rules, 1968). The petitioner was served with a notice on 05.04.1988 (Armexure-5). The petitioner filed reply to the said notice on 07.04.1988 (Amiexure-6). Thei-eafter, on the direction of the Deputy Director, Urban AAninisbration, Bilaspur, the petitioner was removed from service by the impugned order dated 03.12.1988 (Annexure-9). The petitioner has obtained the appointment illegally which was not in accordance with the provisions ofthe Rules, 1968. Thus, the petitioner is not entitled to contmuation in service. The amount whatever has been paid to him for working on the basis of illegal appointment, fhe same is recoverable. ws J/ ^^ 6. I have heard leamed counsel appearing for the parties, perused the pleadings and documents appended thereto. 7. It appears that the document at Annexure-1 is a true copy ofthe letter sent by the Chief Municipal Qfficer for publication in the newspaper on 29.12.1983 asfhe date appearing inthe document is 26.12.1983 and atthe top, it is mentioned "Deshbandhu" dated 29.12.1983. It is fiirther conlumed by the faet that this is a true copy certified by the Chief Municipal Officer, Nagar Palika Parishad, Gharghoda. 8. With regard to the contention that the appointment was not agamst a sanctioned post, it is evident fromthe letter dated 16.11.1983 (Annexure- 2) issued by the Deputy Director, Urban Administration, Bilaspur that one post of Safai Daroga was sanctioned. The appomtment order dated 12.09.1986 (Annexure-3) clearly states fhat the petitioner was appomted for a period oftwo years on probation in accordance with the provisions oftheRules, 1968. Pursuanttofhat,thepetitionerjoinedthepostofSafai Daroga on 12.9.1986 (Annexure -4). On 05.04.1988 (Annexure-5), the petitioner was infomied that in the audit, it was found that his appointment was illegal and as such, a show cause notice calling upon the petitioner to recover the payment of salary, was issued. The petitioner in his reply dated 07.04.1988 (Annexure-6) reiterated that his appointment was in accordance with law. Thus, there cannot be any recovery. Thereafter, a show-cause-notice cailing upon the petitioner to file his response wittun a period of7 days asto why appointment ofthe petitioner, being in contravention ofthe provisions ofRule 11 ofthe Rules, 1968, may not be quashed, was issued on 02.09.1988 (Anne3aire-7). Reply to 4 Ihat efiect was given by the petitioner on 12.9.88 (Annexure-8). After having eonsidered fhe reply ofthe petitioner, by the impugned order dated 3.12.1988 (Annexiu-e 9) the appointment ofthe petitioner was cancelled with immediate effect. 9. Rule 11 ofthe Rules, 1968 reads as under: "11. fatimation ofvacancies. - The number ofvacancies to be filled by direct recruitment shall be communicated by the Standing Committee to the ChiefMunicipal OfBcer in the case of posts carrying a maximum monthly salary not exceeding Rs. 95 and to the Disfarict Selection Committee in olher cases. The ChiefMumcipal Officer or the District Selection Committee, as Ihe case may be, shail notify the said vacancies to Ihe local Employment Exchange in the form and mariner prescribed under the Employment Exchange (Compulsory Notitication of Vacancies) Act, 1959 (31 of 1959) and shall advertise the vacaneies in the local newspapers announcing the number of the candidates to be recmited and shall invite applications on a prescribed fonn within such time as may be specified in the notice. On receipt oftfae applications the Chief Munieipal OfGcer or the District Selection Committee, as the case may be, shall scrutinize the applicatioiis with fhe list of candidates received from the Employment Exchanges, interview such ofthe candidates as prima facie suitable and an-auge the name of the candidates who are more suitable for appointment in the order ofpreference. B name of the candidate has not been received from 1he Employment Exchange but he produces an evidence of the fact that his name is registered in Empioymeiit Exchange then he can be considered for appomtment by fhe District Selection Committee or the Chief Municipal Qfficer." 10. The petitioner, in his reply dated 7.4.1988 (Annexure-6) to the show- cause-notice dated 5.4.1988 (Annexure-5) has not explained asto how the ^ petitioner s appointment was in accordance with the procedure prescribed under Rule 11 ofthe Rules, 1968. Thus, the reply ofthe petitioner was not satisfactory. The petitioner has farther not explained before tius Court also asto howthe procedure prescribed under Rule 11 ofthe Rules, 1968 .;i.^ was followed as admittedly, according to the petitioner, the petitioner had made direct application, notthrough employment exchange. 11. Having regard to the above stated facts, it is evident that fhe appointmeirt ofthe petitioner dated 12.09.1986 (Annexure-3) was not in accordance with the prevailing rules i.e. under Rule 11 ofthe Rules, 1968. Thus, the appointment ofthe petitioner cannot be held as legal. 12.The constitutional scheme provides for equal opportunily to all the elieible candidates before selection and appointment. It is a trite law that any appointment de hors the provisions of statutory rules or regulations caimot be permitted to continue as the same is illegal and fhat also amounts to infraction of the provisions of Article 14 and 16 of the Constitution of India. (See Secretary, State ofKamataka and Others vs. Umadevi (3) and Others, Indian Drugs & Pharmaceuticals Ltd. v. {Vorkmen, Indian Drugs & Pharmaceuticals Ltd., Offlcial Liquidator v. Dayanand and others and State ofPunjab and Others v. Surfit Singh and Others4). 13. As a result, the petitioner is not entitled to any relief sought for in this petitoin. The petition fails and is dismissed accordingly. 14. There shall be no order asto costs. Sd/- San'sh K. Agajhoi Judge Amit ' (2006) 4 SCC 1 2 2007 (1) SCC 408 10 SCC 1 19 SCC 514 E.!il "~""tfi ^