M ‘W‘ g$§xg EEzém IN THE HON’BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) WRIT PETITION (S) N0.¥6_5X [2010 IN THE MATTER OF ARTICLE 226 OF THE CONSTITUTION OF INDIA ; AND IN THE MATTER OF CHHATTISGARH TRIBAL WELFARE 'SUB-ORDINATE (CLASS III - NON-MINISTERIAL) RECRUITMENT RULES 1970 ; AND IN THE MATTER OF CHHATTISGARH PUBLIC SERVICES (PROMOTION RULES 2003) ; AND BETWEEN : PETITIONER Rajesh Kumar Shukla, son of Shri Ramesh Chandra Shukla, aged about 45 years, B.Sc. (Maths), Assistant Teacher, Government Higher Secondary School, resident of Village Mohla, Tahsil Mohla, District Rajnandgaon, Chhattisgarh VERSUS RESPONDENTS State of Chhattisgarh, through the Secretary, Scheduled Caste & Scheduled Tribe Development Department, Mantralaya, D.K;S. Bhawan, Raipur, Chhattisgarh Commissioner / Director Tribal Welfare Department Government of Chhattisgarh, Mantralaya, D.K.S. Bhawan, Raipur, o Chhattisgarh Additional Directorp Scheduled Caste, Scheduled Tribe, Backward Class and Minority Community Welfare Department, .wti Amrito Das, dvocate Government of Chhattisgarh, Raipur, Chhattisgarh K 4. Collector, District Rajnandgaon, Chhattisgarh Shri Anil Kumar Pandre, son of not known, Upper Division Teacher Middle School, Khadgaon, District Rajnandgaon, Chhattisgarh WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT IN THE NATURE OF MANDAMUS AND FOR ISSUANCE OF OTHER SUITABLE WRITS, DIRECTION OR DIRECTIONS, ORDER OR ORDERS /5. Assistant Commissioner, Department of Tribal Development, Rajnandgaon, Chhattisgarh H IGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETIT1ON (S) No. 7658 OF 2010 ‘ Petitioner Ragesh Kumar Shukla Versus State of Chhattisgarh & Others Respondents WRH PETITION (S) No. 371 OF 2011 Petitioner Purushottam Lal Dewangan Versus State of Chhattisgarh & Others Respondents WRIT PETITION (S) No. 372 OF 2011 Girendra Kumar Sahu Petitioner VerSUS Respondents State of Chhattisgarh & Others WRIT PETiTlON UNDER ARTICLE 226 OF THE CONSTITUTION OF tNDIA (SB : Hon’bie‘Mr. Satish K. Agnihctri, J.) Present :- Shri Amrito Das, Advocate for the petitioners. Shri Sushi! Dubey, Government Advocate for the State. ORDER (ORAL) (Passed on 25‘“ day of January, 201 1) 1. W.P.(S) Nos. 7658/2010, 371/2011 & 3722011, involved common facts and a common question of law and, as such, they are being considered and disposed of by this common omen 2. Challenge in' these petitions is to the show cause notice dated 29.11.2010 (Annexure P-1), which was issued to the petitioners after having taken decision on 28.1 1 .2005 to cancel promotion of the petitioners to the post of Upper Division Teacher. 3. The indisputable facts, in bFief, are that the petitioners were appointed as Assistant Teachers. The respondent No.6 was promoted to the post of Upper Division Teacher and the petitioners were denied the benefit of promotion though they were simiiariy placed. One of the petitionersfiied a writ petition being W.P.No. 599/2003 (Annexure P-7). This Court by order dated 26.4.2003, directed the petitioner to make a detaid representation to the competent ie authority o decide the same in accordance with law. It was t further oserved that if any adverse order passed and the, b petitioner thereby aggrieved, he may file a fresh petition chailenging te rder h o. Pursuant thereto the petitioers wer promoted to the post of n e Upper Division Teaer by order dad 2..2003 & 18.6.2003, ch te 6 which was confirmed by memo dated 4.3.2004 (Annexure P-1 O). Thereafter. notice was ssued to the petitiners on 30.12.2005 i o (Aexu P3) calling upon the petitners to cancel the nnre 4 io rootion rder dted 2.6.2003 & 18.620035 Being aggrieved, pm o a the petitioner approached this Court again in .P.No.505/2006 s W 434/2006 435/200 respectiely. & 6 v This Court having cosidered lt the aspects o the matter, n a f granted intrim order in favour of the petioners on 6.2.2006 e ti (Annexure P;1’—):~wThe:matter was thereafter disposed of‘on 22.4.2010 (Annexure P—15), holding that since the order of potio was no pass and there was no case of action, the romn t ed u petition was disissed as premature. However, liberty was m reserved o the State respodent to issue fresh show cause t ns notice to the petitioners, if/so advised. ursuant thereto the P , impugned show cause notice was issued. 4 Learned counse! appearing for the petitioners submits that the impugned show cause notice has been issued after having taken the decision to cancel the promotion of the petitioners to the higher post. Thus; it amounts to post decisional notice. The petitioners impugned the earlier memo dated 30.12.2005 (Annexure P43). This Court oy order dated 22.04.2010 in W.P. No.437/2006 (Shekhuram Sahu v. State of Chhattisgarh & Others) held that memo dated 30.12.2005 was not a proper show cause notice, as the contention, of the petitioner therein, was that a notice'was post decision notice. Accordingiy, the impugned memo was quashed. However, liberty was reserved to the State respondents to issue fresh show cause notice, if so advised. Pursuant to the liberty granted in W.P.No.425/2006’(Hiralal Kosare v. State of Chhattisgarh & Others) (supra) and other. connected matters, the State respondents have issued identical show cause notice on 29.11.2010 holding that the order of promotion dated 2.6.2003 & 18.6.2003 were quashed by order dated 28.11.2005. Thereafter, again a show cause notice was issued in the same fashion after taking adverse decision against the petitioners. The said practice has been deprecated in the earlier petition. Thusvgthe impugned show cause notice is contrary to the well settled principles of law. 10. The Supreme Court in Sahara India (Finn), Lucknow v. Commissioner of Income Tax, Centrat-I & Another’ held that even in absence of express provision for affording an opportunity of pre-decisional hearing, the principles of natural justice is to be 1 (2008) 14 soc 151 fcuowed before taking a decision. it was further abserved as under “31. We are alsa una’b/e to persuade ourselves to agree with the propositian canvassed by learned counsei for the Revenue that since a post-decisionai hearing in ierms of sub-section (3) of Section 142 is contemplated, the requirement of natwal justice is fully met. Apart frem the fact that ordinarily a post- decisionai hearing is no substitute for pre- decisional hearing, even from the language of the said provision it is plain that the opportunity of being heard is only in respect of the material gathered on the basis of the audit report submitted under sub-section (2~A) and not on the validity of the on'ginat order directing the special audit. it is Well sewed that the principtes audi alteram partem can be excluded onty when a statute contemplates a post—decisional heating amounting to a fult review of the original order on merit, which, as explained above, is not the case here”. 11. In the case on hand, there is no statutory provision to provide post-deoisionai hearing, which necessitates review of the order in full. Appiying the weii settled principles of law to the facts of the case Where admittediy decision to quash the earlier order of promotion was taken before issue of show cause notice. Thus, show cause notice is vitiated. 12. in View of foregoing reasons, the impugned notice dated 29.11.2010 is quashed. Accordingly, the writ petitions are allowed. No order asto costs. l sai-l ll Judge ll Ashok Gowri l l Satish K.Agnihotri w