F' ^.,-?,,.; i?,llftjs1: B^'^ c^ IN HIGH COURT OF CHHATTISGARH AT BILASPUR <^2-^>t- WRIT PETITION'-r^ N0. } ^A OF 2009 PETITIONERS 1. Kamlesh, son of Jawahar Lal Verma. Aged about 23 Years 2. Kum. Neetu Nirala, daughter of Chhoturam. Aged about 22 Years 3. Toman LalSahu, son of Shri Kashi Ram Sahu. Aged about 32 Years 4. Parmanand Sahu, son of Bisoharam Sahu. Aged about 35 Years 5. Chandrahaas Maheshwari, son of Jaipal Maheshwari. Aged about 23 Years 6. C)hannulal Khunte, son of Chintaram Khunte. Aged about 36 Years 7. Kum. Manju Sahu, daughter of Bhushan Lal Sahu. Aged about 22 Years 8. Smt. Premlata Uikey, wife of Shri Lala Singh Aged about 24 Years. 9. Smt. Kavita Shivare, wife of Santosh Shivare. Aged about Years v s: ^3^^%. '^^^!.^ '"—. 'l. \ -,1^ (^ ®rf;'-%'1 J^f^ ^^ k-^^'J / / lO.Sanjay Kumar Verma, son of Narayan Prasad Verma. Aged about 25 Years ll.Kum. Indrani Sahu, d/o Narayan Sahu. Aged about 22 Years 12.Tikeshwar Prasad Kurre, son of Kanhaiya Lal Kurre. Aged about 23 Years 13.1-lemlata Verma, d/o Ravishankar Verma. Aged about 23 Years / 14.Ganeshram Dhruv, s/o Mantram Dhruv. Aged about 24 Years 15.Kum. Sushma Chandrakar, d/o Thakurram. Aged about 24 Years 16.Manuram Kannoje, s/o Goverdhan Kannoje. Aged about 23 Years 17.<5unit Sahu, s/o Ramcharan Sahu Aged about 23 Years IS.Ashutosh Gaikwad, son of Kunwarlal Aged about 33 Years y 19.5mt. Kusum Basant, d/o Daduram. Aged about 24 Years 20. Smt. Kouseiyabai W/o Rajnarayan Miri Aged about 28 Years / / ^ ^ » 21. Jai kumar Baghel S/o Mamulal Baghel Aged about 2SLYears 22. Smt Radhika Sahu W/o Fattelal sahu age about 2!f Years All are working as Shiksha Karmi Grade-III under the Janpad Panchayat Palari, Oistrict Raipur. <L>- Vs RESPONDENTS : / 1. State of Chhattisgarh, through the Secretary, Department of Panchayat <& Social Welfare, bau Kalyaan Singh Bhawan, Mantralaya, Raipur. / 2. The birector, Panchayat Chhattisgarh, Raipur. 3. The Collector, Raipur. / 4. Chief Executive Officer, Zila Panchayat Raipur. 5. The Chief Executive Officer, Janpad Panchayat Palari, District Raipur (CG) 6. Sub bivisional Officer, Baloda Bajar, District- Raipur (CG) ^ PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INblA ...*<1 •^' mGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (227) No. 1 151 of2009 PETITIONERS : Dev Kumar Sahu & Others. VERSUS APPELLANTS RESPONDENTS State ofCbhattisgarh & Others. WRIT PETITION (227)No. 1263 of2009 PETITIONERS : Kamlesh & Otheis. RESPONDENTS VERSUS State ofChhattisgarh & Others. PETITIONERS APPELLANTS WRIT PETITION (S) No. 2848 of2009 Purashottam Nishad & Others. RESPONDENTS VERSUS State ofChhattisgarh & Others. PETITIONERS APPELLANTS WRIT PETITION CS'I No. 2935 of2009 Smt. Sarita Netam & Others. RESPONDENTS VERSUS State ofChhattisgarh & Others. WRIT PETITION (S) No. 7140 of2009 PETITIONERS : Paltan Ram & Others. RESPONDENTS VERSUS State ofChhattisgarh & Others. % ^.•'WS^S's-.&Vr^WS^' WMT PETITION (S) No. 7481 of2009 PETITIONER : LeeladharPathak. RESPONDENTS VERSUS State ofChhattisgarh & Others. PETITIONER WRIT PETITIQN <S) No. 1 159 of2010 Gayatri Sahu VERSUS RESPONDENTS State ofChhattisgarh & Others. WRIT PETITION (S) No. 2108 of2010 PETITIONERS : Bisahatram Nishad & Another. VERSUS APPELLANTS RESPQNDENTS State ofChhattisgarh & Others. WRIT PETITION (S) No. 1345 of2009 PETIT10NER : Ku.KalpanaDeshmukh. VERSUS RESPQNDENTS State ofChhattisgarh & Others. (Writ Petitions under Article 226/227 ofthe Constitution oflndia) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present: Shri Manoj Paranjape, Ms Sharmila Singhai, Sfari Jitendra Pali, Shri Varun Shanna and Shri Sunil Sahu, Advocates for the respective petitioners. Shri M.P.S.Bhatia, Deputy Govermnent Advocate for the State, Shri Arun Sao, Shri Pankaj Shrivastava and Shri Dinesh RK. Tiwari, Advocates for the respective respondents. (Delivered on ... &r.~day ofAugust, 2011) 1. Since WP (227) Nos.l 151 & 1263 of 2009, WP (S) Nos.2848, 2935, 7140 & 7481 of 2009, WP (S) Nos.1159 & 2108 of 2010, WP (S) No. 1345 of 2009, involve common facts and question oflaw, thus, they are being disposed ofby this commonjudgment. 2. Challenge in these petitions is to the orders dated 23-12-2008, 23-12-2008, 23-12-2008, 30-1-2009 & 23-12-2008 passed by the Director Paachayat m WP (227) No.1151/2009, WP (S) No.2935/2009, WP (S) No.2848/2009, WP (227) 1263/2009 & WP (S) No.2108/2010, respectively and the orders dated 24-11-2008, 16-11-2009, 16-11-2009 & 16-11-2009 passed by the Collector in WP (S) No.1345/2009, WP (S) No.7140/2009, WP (S) No.7481/2009 & WP (S) No.1159 of 2010, respectively, by which the appointment of the petitioners on the post of Shiksha Karmi Grade - III has been cancelled. 3. The brief facts of the case, as projected by the petitioners, are that the petitioners were appointed on the post of Shiksha Karmi, Grade III after due selection process and after due verification of the documents. The selection process ofthe petitioners was conducted in accordance with the provisions as enshrined in Chhattisgarh Panchayat Shiksha Karmis (Recmitment and Conditions of Service) Rules, 1997 (for short 'the Rules, 1997'). Thereafter, some complaints were received by the Collector, Raipur preferred by some unsuccessful candidates who had participated in the selection process. The Sub Divisional OfBcer conducted an enquiry on the basis of the aforestated complaints and subinitted an enquiry report to the Collector. Thereafter, the Collector, cancelled the appointment of the petitioners to the post of Shiksha Kamii Grade III by the orders as stated in para 2 of this judgment. Thus, these petitions. 4. Shri Manoj Paranjape, Ms Shannila Singhai, Shri Jitendra Pali, Shri Varun Shanna and Shri Sunil Sahu, Advocates, leamed counsel appearing for the respective petitioners, would submit that while passing the impugned orders, the Collector has acted with material irregularity and illegality. The Collector has not at all appreciated the provisions of Section 85 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short "the Adhiniyam, 1993"} in its tme perspective. The enquiry proceedmgs have been initiated behind the back of the petitioners and the copy of enquiry report has not been supplied to the petitioners. The impugned orders have been passed without following the basic prmciples ofnatural justice, which is not at all sustainable in the eyes oflaw. 5. Leamed counsel would further submit that the impugned orders have been passed on the allegations that the petitioners have obtained the appointment by playing fraud and stigmatic order has been passed without holding proper enquiiy. The Diiector Panchayat has also passed the impugned order without appreciatmg the grounds raised in memo of appeal and has further upheld the order ofthe Collector in holding that the Collector has exercised the power under Section 85 (1) ofthe Adhiniyam, 1993 rightly. 6. On the other hand, Shri M.P.S. Bhatia, Deputy Govemment Advocate for the State, Shri Arun Sao, Shri Pankaj Shrivastava and Shri Dinesh RK Tiwari, Advocates for the respective respondents, 7. 8. would submit that fhe after receipt offhe complaints with regard to some illegalities at tfae time appointment of Shiksha Karmis, the enquiry committee was constituted and during the course ofenquiry proceedings, the Tahsildar recorded the statements ofthe petitioners in which they categorically stated that they have not submitted any forged documents and their appointment was in.accordance with law. In the meanwhile, the enquiry committee ascertained about the veracity of documents from the concemed institutes from where it was found that the documents produced by the petitioners were forged one. After completing all the process, the enquiry report was prepared and submitted before the authorities. On the basis of the enquiry report, proper show cause notices were issued to the petitioners, a&er receipt oftheir reply, recorded the statements ofthe petitioners and after going through all the aspects of the matter, the cancellation of appointment of the petitioners was passed. Therefore, it cannot be said that the impugned action has been taken behind the back of the pedtioners. Thus, fhe petitioners are not entitled to any reliefand the petitions may be dismissed. I have heard leamed counsel appearing for the parties, perused the pleadings and the documents appended thereto. The Collector by order dated 27-11-2007 (Annexure - R4/6) directed the Sub Divisional OfRcer (Revenue), Baloda Bazar, District Raipur, to hold an enquiry on the complamt made by one Dinesh Kumar Chandrakar regarding irregularities and illegalities, as under: 9. i. 3i<jRiiifi<4)u aifiwrit (?i3Rg) c6 SKasicn ^ Gae 3113 ^rfti ^ifea ^fft 3n^f sriici ^iftrf^T ^ •y<iii-ai ^T ofUlicbol 3fojRli>l|di)<| alRltfelfl (?13Rq) gFZI ^t few alridll | 2- ate Ri^&d ?t ^^1 t HCT 'Sren d»DiAii gRi cbi-ifon? aft ^igiii cB? ftrai arai ^SKt aii^fta teii cb0i<il E^ gysiara si^aig y<Hiuiy5r/^eicbci giHiuiy?) ^i •AiciRiri wn ^ ^riiiiw s^rai 311^1 3.. aiiAfta ariiicbl (fii8ii *Ri<il) ^ Ma affEtepi c^ RT^&ri ci.h-ii^.»i gi(?r ^r firen cbRiAli 3Fk ^13181 ^ ^rlkW cl-4T(l^f<3(| SI trflgfflf felll sn^l 4.. 'SffQ ^ IR^ 31^ cbRiAfi/sriSTyRicidiiiif ^ ^iaEi ^ qi4 yliiA;»i ^ Bra ^) ORI 8B CT EIRI 91 ^ tlBH RlRldd uww uicjd ten 3nA 1 5-. 310 ^ ^BCT cblliyiclal Slfa^lit, 3151CK; lldWd C^ 3Bsi ^iDfRt a& TC?al SRI vSt ai^ M[Wrcn^l/3(1SroRiciifli ^ 3ira 357 yias-yi^ yfa^cioi C3 ten sHai gi?i lesfl li-wi^ii g?ga SCTI iiri 3H^ IR ^RI ^ 92I3T •UcISII RtAJ (F.I.R,) ^ S*-iot ^g yl?i^<)oi fen 3iA] 6.. ^raoi 3Tra 9l^»^i ^ feiar ^ian siRi^rA, ^rog? gp^i 31<jRfi>l|dB« aRlcbl-il (?I5REf) dcflitldMI'! SBl OiicBiUco •H^lAdl ^ft 3H^| The Sub Divisional Officer (Revenue), pursuant to fhe al-'jvestated order, constituted an enquiry committee comprising of Tahsildar, Palari, Block Education Officer, Palari, Block Education Officer, Baloda Bazar and In-charge Principal, Pandit Laxmi Prasad Tiwari Govemment Giris Higher Secondary School, Baloda Bazar, to examine the documents and record the statements of all the candidates by order dated 27-1 1-2007 (Annexure - R4/7). 7 10. After completion of the enquiry, by memo dated 28-1-2008 (Annexure - R4/8) the Sub Divisional OfBcer came to the conclusion holding that out of 133 Shiksha Karmis, in&nnation could be received in case of97 candidates. In all the 97 cases, fhe documents submitted by them were found forged, as the said documents were not issued by the concemed departments/ institutions. It was held that since the testimonials submitted by them were forged/false and, as such, they were not eligible for selection. 11. FIR was lodged against the Chief Executive Officer, Janpad Panchayat, Palari, on 24-5-2008 for offences punishable under Sections 467, 468, 471 & 420 ofthe Indian Penal Code in police station Palari vide crime No.135/2008. Thereafter, show cause notices were issued to the petitioners asto why their appointment orders may not be cancelled under the provisions ofSection 85 (1) oftheAdhiniyam, 1993. 12. The petitioners submitted their reply and on consideration of the reply and after recording the statements of the petitioners, again, as averred in para 5 ofthe retum filed by the respondent No.4 in W.P. (227) No.l 151/2009, the order canceling the appointment of the petitioners has been passed. Some of the petitioners have gone thereagainst to the Director (Panchayat) in appeals. The appeals were also dismissed confirming the order passed by the Collector. 13. Section 85 (1) ofthe Adhmiyam, 1993 reads as under : '85. Power to suspend execution of orders, etc.- (1)The State Govemment or the; prescribed authority may by an order in writing and for reasons to be stated therein suspend the execution of any resolution passed, order issued, licence or permission granted or prohibit the performance of any act by a Panchayat, if in his opinion,— (a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised; (b) such resolution, order, licence, pennission or act is m excess of the powers conferred by this Act or is contrary to any law; or (c) the execution of such resolution or order, or the continuance in force of such licenee or permission or the domg ofsuch act is likely— (i) to cause loss, waste or misapplication of any money or damage toany property vested in the Panchayat; (ii) to be prejudicial to the public health, safety or convenience; (iii) to cause injury or annoyance to the public or any class orbody ofpersons; or (iv) to lead to a breach of peace." 14. The Collector exercising his power under Section 91 ot' the Adhiniyam, 1993 read with Rule 5 ofthe Chhattisgarh Panchayats (Appeal and Revision) Rules, 1995 (for short "the Rules, 1995") took up the matter suo motu in revision and reversed the order of appointment a&er affording proper opportunity of hearing to the petitioners. 15. Contention of leamed counsel appearing for the petitioners that a show cause notice, after preliminary enquiry, without supplying a copy of the preliminary enquu-y report was violative of basic principles of natural justice, as the petitioners were not in a position to respond to the rqiort when on the basis of the said report final order was proposed to be passed, cannot be countenanced. 16. In support of the contention, leamed counsel appearing for the petitioners placed reliance upon several decisions of the Supreme Court as well as this Court. 17. The Supreme Court in State ofU.P. v. Mohammad Nooh , held that ";'f cannot then be laid dov/n as an inflexible rule of law that the superior court must deny the writ ~when an inferior Cowt or tribunal by discarding all principles of natural jiistice and all accepted rules of procedwe arrived at a conclltsion ivhich shocks the sense of justice andfair play merely becazise such decision has been upheld by another inferior court or tribunal on appeal or revision." 18. The facts of Mohammad Nooh (supra) are not applicable to the instant case, as the basic requirement of natural justice to afford an opportunity of hearing m the preliminary enquiry and thereafter, second show cause notice before passing the impugned order was afforded to the petidoners and this is also not a case where the writ Court has declined to entertain this petition on the ground that the order ofCollector has been afGmied by the Director Panchayat. 19. The Supreme Court in Union oflndia & Ors. V. S.K. Kapoor^, held that copy of the report has to be supplied in advance to delinquent employee. This is a case where the enquiry was conducted in 'AIR1958SC86 :'2011AIRSCW1814 10 absence of the delinquent employee whereas in the instant case the delinquent employees were afforded fiill opportunity ofhearing. 20. The case of Mohinder Singh Gill and another v. The Chief Election Commissioner. New Delhi and others , is not applicable to the facts ofthe present case. 21. The case ot Hindustan Petroleum Corpn. Ltd. v.-Darius Shapur Chenai and others , which was fhe case of land acquisition, is B'ot applicable to the facts ofthe present case. The other decision cited by the petitioners i.e. Hukum Chand Shyam Lal v. Union oflndia and others , is also not applicable. 22. The decision of the Supreme Court in U.P. State Road Transport Corporation and another v. Mohd. Ismail and others deals with the exercise of discretion by the holder of a public ofRce. The exercise should be judicious and in furtherance of accomplishment of the purpose ofpower. 23. In the instant cases, I have not found that exercise done by the Collector was in any way deficient or irregular, as contended by tbe leamed counsel for tfae petitioners. 24. Reliance of the petitioners upon the decision of this Court in Durgesh Prasad Sinha v. State of Chhattisgarh and other eomiected matters, is not relevant in this case, as the petitioners were granted proper opportunity ofhearing before.tfae orders were passed. 3AIR1978SC851 "AIR 2005 SC 3520 5 AIR 1976 SC 789 6 AIR 1991 SC 1099 7WP (S) No.3012 of2009 (decided on 7-8-2009) 11 25. This Court in Bhishmadeo Hota v. State of Chhattisgarh & Others , observed as under: 10. This Court, in Mrityunjay Shukia & Others v. Municipal Corporation, Raipur & Others relymg on Nehru Yuva Kendra Sangathan v. Mehbub Alam Lastar , State ofPunjab & Others v. Constable Avtar Singh (Dead) through LRs . Ashok Kumar Sonkar v. Union of India & Others , State of Manipur & Others v. Y. Token Singh & Other , Jaswantsingh Pratap Singh Jadeja v. Rajkot Mumcipa! Corporation & another , Inderpreet Singh Khalon & Others v. State of Punjab & Others , Mohd. Sartaj and another v. State qf UP. & Others Viveka Nand Sethi v. Chairman, J&K Bank Ltd. & Others'7, Canara Bank & Others v. Debasis Das & Others , Bastideo Tiwari v. Sido Kanhu University & Others , D.K Yadav v. J.MA. Industries Ltd., & Others said Shrawan Kumar Jha & Others v. State of Bihar & Others , decisions rendered by the Supreme Court, observed as under: "21. There is a common thread that the principle ofnatural justice is not unruly horse. The principles of natural justice are required to be complied with, having regard to the facts situation obtained therein. Thus, 'WP (S) No.1558 of2009 (decided on 25-3-2010) ' 2009(1)ccu 97 '°(2008)2 SCC479 "(2008)75cc405 12(2007)4SCC54 13 (2007) 5 SCC 65 14 (2007) 10 SCC 71 15 AIR 2006 SC 2571 "•(2006)2SCC315 "(2005) 5 SCC 337 18(2003)4SCC557 "AIR 1998 SC 3261 20 (1993)38cc 259 "A1R 1991 SC 310 26. 27. 28. 12 the principles of natural justice may not be required to be followed in the cases, where the facts are admitted. Secondly, that it is practically impossible or highly improbable to afford an opportunity of hearing m the event of quashing of selection on aecount of irregularity committed on mass scale, or en-masse cancellation. Thirdly, no usefal purpose would be served by afFording an opportunity of hearing. The contention ofthe petitioners that the Collector ought not to have exercised his power to cancel the appointment under the provisioHs of Section 85 (1) of the Adhiniyam, 1993, as it deals with only suspension, does not merit acceptance. So far as power ofthe Collector is concemed, there is no gainsaying that the Collector has no power to set aside the order of appointment. The Collector in exercise of his revisionary power under Rule 5 of the Rules, 1995 can take up the matter suo mofu and take final decision to reverse the order of appointment after affording proper opportunity ofhearing to the petitioners. Admittedly, the petitioners were afforded an opportunity of fcsaring during enquiry and thereafter show cause notice was issued before passing the order ofcancellation ofappointment. Even it is stated, at the bar, by the respondents that after show cause notice the petitioners were afforded an opportunity of hearing and got their statements recorded, before the Collector. From the said facts, it is crystal clear thatthe principles of natural justice was complied with full foree. There was no violation of fair play-in-action. ft 13 29. So far as power ofthe Collector is concemed, it is well established that "when there are two sources of power, even if one is not applicable, the ^rder will not become invalid if the power of the statutory authority can be treated to another sowce." (See : High Cowt of Gujarat and Another v. Gujarat Kishan Mazdoor PanchayatandOthers ). ' 30. The Supreme Court in J. Kumaradasan Nair and Another v. IRIC Sohan and Others , observed as under: "18. It is also now a well-settled principle of law that mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. While exercising its power, the coiirt will merely consider whether it has the source to exercise such powerornot....." 31. In view of foregoing and applying the well settled principles of law to the facts ofthe present case, in the sequel, all the writ petitions are dismissed. 32. There shall be no order asto costs. Gowri Sdl- . S.K.Agn'h01" Judge " (2003) 4 SCC 712 23 (2009) 12 SCC 175