ft C^)^^ IN THE HIGH COURTOF CHHATTISGARH AT BILASPUR WRITAPPEAL N0. ^ ^PELLANT yeT/r'oM^^ / ...-:^ ..-I'l ^ ^.yy ..»'" y^ ^^R^ ^^" ^ Topchand Sahu, S/o SKri Shivi-am Sahu, Aged about 49 years, Occupation-Lecturer, Govennment Kisan Higher Secondary School, Karamtara, Rajnandgaon, District- Rajnandgaon (C.G.) w k«t'f-" ys---' VERSUS RESPONDENTS ffl^fspo^/<pf^''y v\. ^^ ^ 2. ?'G^ ^^ o' J-. <y State of Chhattisgarh, Through theSecretaiy, Department of Schopl Education, Mantralaya, D.K.S. Bhavan, Raipur, Raipur (Chhattisgarh) Director, : ' Public Instructions, Raipur, Raipur (C.G.) Commissioner, Publiclnstructions, Raipur, Raipur (C.G.) DistriGf Education Officer, Rajnandgaon, District-Rajnandgaon (C.G.) WRFT APPEAL UNDER SBCnOKTZW THEGHHATTiSGARH HIGHCOURT IAPPEAL TO DIVlESION BENCHt ACT. 2006 HIGH COURT OF CHHATTISGASH. BILA8PUR DB: HON'BLB I. M. QUDDU8I & HON'BLE PRA8HANT KUMAR MISHRA, JJ W.A.No.9aof2008 Topchaad Sahu Vs. State of CUiattisgarh and ofhers W.A.No.93of2008 Bhojraj Chaudhaiy and others Vs. - State of Chliattisgarh aad others JUDGEMENT For consideration Sd/- I.M.Quddusi Judge HON'BLB 8HKI JUSTICB PRA8HANT KUMAR MISHRA Sd/- Prashant Kumar Mishra Judge Postfor o*?/12/2011 Sd/- I.M.Quddusi Judge *f'. .1 HIGH COURT OP CHHATTI8GARH. BILASPUR DB: HON'BLE I.M. QUDDUSI & HON'BLE PRASHANT KUMAR MISHRA, JJ, W.A.No.92of2008 APPELLANT i.._ i Topcliaud Sahu ^sf Vs. W.A.No.93of2008 Vs. WRIT APPEAIS IXNDERSBCTION 2 OP THE CHHATTISGARH HIQ!LCOURTtA:P?EALTODIVISION_BBNCHaACT,^[006 APPBARANCE: Mr. Ashish Shrivastava, counsel for fhe appeUaatfs) aad Mr. Mr. Viaay Harit, Deputy Advocate General for fhc State in bofh the appeals. Per I.M. QUDDUSI. J. JUDGMENT ( o<».12.2011) 1. These are fhe two writ appeals filed against the unpugned award dated 20.07.2006 passed by the learaed single judge- whereby the Writ Petition Nos.2622/2001 aad 1403/2002 ffled by fh.e appellants were disxiiissed. W.A.No.93/2008 arose out of W.P.No. 2622/2001 and W.A.No. 92/2008 arose out ofW.P.No. 1403/2002. Since bofh these appeals iavolve ttie saine question of law aad facts, fhey are beiug disposed of by this conunon order. 2. Brieffacts ofthe case are as under: RESPONDENTS State of Chhatdsgarh & others APPBLLANTS TBhojraj Chaudhaiy aad others RESPONDBNTS State of Chliattisgarh and others g i ^ ^ (i) W.A.Nb. 93/2008 arisingoutofW.P.No.2622/2001 AppeUaats were einployed iu the Kisaii Higher Secondary School, Karaaikara. AppeUauts 1 & 5 were woridng as Upper Division Teachers, appeUaut No.6 was worlsmg as Craft Teacher. The respondent/State by Letlgr dated 26.091998 informed the Commissioner, Public Education, comiuuDicatiag fhe consent of the Govemment that the Govenunent had agreed to take over fhe private school tfaat is Kisau H^tier Secondaiy School, Karmkara., District Rajnaadgaou with some staffing pattera subject to certaia tenns and conditions, mcludmg that the employees working m ttie said sctiool would. be absorbed after screeniag on fhe basis of their qualifications foUowitig fhe reservation poUcy. The school was accordiagly taken- over by fhe Govermnent w.e.f. 01.12.1998 as per the commnnication dated 01.01.1999, Thereafter vide inemo dated 22.07.2005 seven inore posts i.e., 3 posts of Shiksha Kanni Grade-II, 1 post of Shiksha Kanni Grade-III aad 3 posts of Peons, were sanctioned by ftie State/respondents. (ii) Writ Appeal arisine out of Writ Petition No.140372002 The appeUaat was appointed as Upper Division Teacher on 02.07.1982 in. KBau H^her Secondary School, Karamkara. The said school was taken over by the Govenunent with soine «taf5ngpattem. Thereafter, the appeUaiit was proinoted to the post of Lecturer on 28.7.1997. He could not be absorbed because he was not el^ible for fhe post of eifher as Lccturer or as Upper Division Teacher but was eligible for appoiatment on lower grade i.e., on fhe post of Lower Division Teacher, v •v"^s^^ y .^*< ^aS33i! However, fhe petitioner coiild not be appointed even on the post of Lower Division Teacher on the groiind of nou- availability of fhe sauctioned posts. 3. In W.P.No.2622/2001, appellauts Bhojraj Choudhary, Maksudan. Lal Venna aad Satish Kumar Sharma and 7others vf sought fhe foUowiag relief[s) ; i^-^i (i) That the respondeuts be dirccted to produce ttie entire record which relates to the absorption proceeding offhe petitioners; (ii) That fhe respondents inay kiudly be directed to absorb fhe services of fhe petitioners agaiast fhe post in which they are working in. Goverrmien.t Kisan Hi^her Secondary School Karamtara; (iii) That tlie respondents niay kindly be directed to provide the salaiy aad ofher benefits to the petitioners since 01.12.1998 when fhe State Goverrunent has taken over the petitioners school; (iv) That the respoudents inay also be directed to trcat fhe petitioners services and fhey inay absorb iu fh.eir respective posts Uke the other schools eniployees who were absorbed uiider staff pattem norms; aud (v) Any other relief which fhis Hon'ble Court laay deeia fit aad proper niay also be passed in favour offhe petitioners. 4. In W.P.No. 1403/2002, appeUant Top Chaad Sahu sought sumlar reliefl[s), which are also quoted as under: (i) That the respondents be directed to produce the entire record which relates to absorption. pioceeding of fhe petitioner, (ii) That the respondents niay kmdly be directed to absorb the services of fhe petitioner against the post of lecturer; (iv) (V) That the respondents be directed to provide fhe salary of the petitioner 6om. fhe date of taken over the school under the control offhe govenunent i.e., 01.12.1998 along-wifh interest @ 18% per aanum.; That the respondents niay also be dirccted fh.at fhe petitioner be treated as a lecturer Uke other lecturers who were absorbsd ^ainst ftie post of lecturer; Any ofher relief[s) which this Hon'ble Court niay deem fit and proper inay also be passed na favour ofthe petitioner togefherwifh. costofthe petition; 5. AppeUants ofW.A.No.93/2008 were working as Upper Division Teachers. AppeUaat of W.A. No. 92/2008 was workiag as Lecturer in KisEm. Higher Secondaiy School, KarEunkara. The institution was taken over by the State Govenuiient wifh the foUowing stafBng pattem. Thoueh the posts saactioned by the Govenunent at fhe tune of undertaking the appeUants' school/institution were iacreased later on but even fhen the writ appeUaats cifher due to their qualifications or due to ah-eady absorption of certaiu. persons, could not be given chauce of absorption in fhe said institution after taldug over by the Govenunent. S.NO. Designatioa No.of posts Pay Scale Rs. 1. Priucipal 01 8000- 13,500/- 2. Lccturer (Shiksha Kanni Grade-I) 05 1200- 20001- 3. Lower Division Clerk 01 400/-part timp •<> 6. Leamed counsel for tlie appeUaiit has submitted that on fhe basis of Circular dated 26,6.1995 the School Education Departinent, approved certain terms aud conditions for absorption of stafF of non-goveminental aad local body schools beiag taken over by the Govenunent aad according to fhe said ^sf Circular the Upper Division Teachers, Lecturers aad other staff would be absorbed on the post held by thein at the tim.e of takine over of the institution uiider the Govenunent Control provided fjj he is quaUfied to fhe post held by him, (ii) and he is receiviag the prescribed scale ofpay on the cadre.A person who does not fulfiU fhe conditions laid down ia sub-paras (i) & (ii) above, may be absorbed iu lower grade/post for which he ^ entiUed on fhe strengfh of his quaUfications and pay. He has further submitted that accorditig to the said Circular fhe appeUants have right to be absorbed subject to fhe quali&cations possessed by fheni and if the appeUaats are not quali&ed for the post held by thein, they niay be absorbed ia lower grade post. He has also submitted fhat llie requireBient of the employees in fhe private iastitution taken over by the State Goverrunent was 17, as recoiniaended by fhe Joint Director, PubUc Instructions, but ftie Govemment has approved only 14 posts, as out of fhein, three persons were not qualified for the posts held by thein. It has been fiirther submittEd that appeUant Topchand Sahu as per the Scheine of the Goverruaent is entitled to absorption on fhe post of Lower Division Teacher. Accordingly, he prays that the State/ respondent be conunanded to sanction inore posts, keepiag in view fhe eligibUily of fhe appeUants for fheir absorption as the 8. Goveminent is under obl^ation as per fhe Circular/Meiao dated 26.6.1995. The leanied siagle Judge has disniissed fhe writ petitions holdiag fhafc "It is weU. settled principles of Issw fhe Govenunent cannot be directed to create a post which inay disturb the fixiaacial status of fhe Govenunent, whereby fiiads are aUocated to various departDients for various purposes. Eveu otherwise, at this stay,e, the State Govenuuent caxuiot be directed to create posts to accoiiuaodate the petitioners, who could uot be absorbed by fhe Goverament on taking over tfae School/Institution, as per fheir quali&cation, when tfae said posts inay not be required by the institution. There are total 11 petitioners in both fhe petitions, out of whoni, soiae have been absorbed on account of further sanction of posts subsequenfly vide order dated 22.7.2005. The remflining petitioners, who coiild not be absorbed on account of the reasons stated above, have no right to be absorbed under fhe circular dated 26.6.1995 aad fhe order dated 1.1.1999, takiag over fhe institution." Duriag the course of hearing in. these writ appeals, learued counsel for fhe appeUants has agam eniphasized fhat the writ .appeUants should have been absorbed by creating superlative posts or additional posts or shoiild have been absorbed ia ofher iastitutions. The question ofcrcating superlative posts or additional posts or adjustment of fhe writ appellaats ia ofher iiistitutlons accordiug to their quali&cations is purefy an adininistrative question and no judicial review is possible for the sauie. 9. 10. In CTnion ofAuUa and others -Vs- FUght Cadet Asfiish Ktd (2006) 2 SCC 364, Hon'ble fhe Supreme Court had occasion to discuss the scope of exercising judicial review of adininistrative action uiider Article 226 of fhe Constitution of India. In para 6 it has been held as under: V/ There should be judicial restraint while inakm! judicial revicw in adiniaistrative inatters. WIiere irrelevaiit aspects have been eschewed from consideration aad no relevaat aspect has been igaored and tiie adiniaistrative decisious have nexus witii the facts on record, fliere is no scope for iaterference. The duty of fhe court is (a) to confine itself to the question of legality; fb) to decide whether fhe decision inakiag authority exceeded its powers; (c) coiiunitted an error of law: (dl cominitted breach of ftie rules of natural iustice; and (e) reached a decision which no reasonable tribunal would have reached; or (fl abused its powers. Adituidstrative action is subject to control by judicial review ia the foUowing inaruier: (fl (ii) (iil) lUeealitv: fhis ineans fhe decision- uiaker niust understand correcflv fhe law that regulates his .decision laakiug power aad inust give effect to it. Irrationality, nam.ely, Wednesbuiy UDreasonableness. Procedural inipropriely. In view of fhe above, fhis Court cannot give a direction to fhe State Goveruinent to appoiut writ appeUants by creatmg additional posts according to their quali&cations or adjust theni in. ofh.er uistitutions as fhe appeUants have no r^ht to be absorbed. Hence, we do not find aay scope warran.ting interference ia the impugned order/judgment passed by the ,/^1 leamed single judge. The appeals fail aad are disiaissed. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge Rao