PETITIONER IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH W,P.N0. 40—63 /2004 Ravindra Kumal' Bairag‘i, Aged about 27 yrs, /'M S/o. Shyamlal R/o. Village Kirari, RS. & Tah, Dabhara, District Janjgir-Champa (CG) VERSUS State of Chhattisgarh, Throughi Secretary, Fanchayat & Gram Vikas Vibhag, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) Collector, Janjgir‘Champa, District Janjgir-Champa (CG) S.D.O. Dabhara, District Janjgir-Champa (CG) Gram Panchayat Sukhap ah, Through: its Sarpanch, Tah. & Block Dabhara, Distt Janjgir-Champa (CG) Chief Executive OfEicer, Janpad Panchayat, Dahhara, District Janjgir-Champa (CG) Puniram Banjara, Aged about 30 yrs, S/o. Mahettarram Rio. Village Sukhapali, Tahsil Dabharan District Janjgir‘Champa (0G,) Bhupendra Kumar Patel, Aged about 30 years, S/o. Ramadhar Patel, R/o. Village Dabhara, District Janjgir' Champa (C.G.) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA 1] PARTICULARS OF THE PETITIONER (S): Q As stated above in the cause title. 2] PARTICULARS OF THE RESPONDENT (S): As stated above in the cause title. ,7 ‘ 3] PARTICULARS OF THE ORDER(S) AGAINST‘ WHICH THIS PETITION IS MADE. The petitioner by way of instant writ petition calls in question the'validity, illegality and propriety of the order passed by the H1 HIGH COURT OF JUDICATURE AT BILASPUR QCHHATTISGARH i MM ‘ lit PetiE‘on No.4269 of 2004 Ravindm Kumar Bairagi — Versus * State of Chhattisgarh &. othem PRx“ OST MR ORDER 9N 26.4.2095 . v Sdl— ~ L.C.BHAD°° Judge tk‘ HIGH COURT OF JUDECATURE AT BILAS?UR. CHHATFISG$RH Writ Petition Na.4259 of 2004 Ravindra Knmar Bajmgi ~ VErsus - Stam of ChhattEgarh & others 3efore Hon’ble Mr. L.C. Bhadoo, J. 0 R D E R {Passed onzm. Apn'i, 2065)‘ 1. The p61ifion€r, who was appointéd as Samvida Shikshak Grade-III in Gram Panchayat Sukhapaii, District Janjgir-Champa by re5ponden‘t No.4 through a selecfion‘ after" invitirig' applica‘h’ons from the digiblc candidates, has qu€sfion€d the legedity and propriety of order dated 13.10.2004 (Annexure P—ll} passed by the Additional Collector, Janjgir-Champa in Agapeal No.5/A/798(15}/‘2003-O4 affirming the onier of Sub Divisional O$cer (Revenue), Dabhara dated 26.2.2004 passed in Case No. 1/A-a9 {15) 2003-04. 2. Brief facts leading to F‘Hug of this petition. as mentioned in the petition, are that pmcess for vecmitment of Samvida Shikshak Grade—II} was taken up by Gram Panchayat Sukhapah‘, Disttict Janjgir—Champa under the 0G. Panchayat Contract Teachers it {Appointment $67C0nditions of Sewice) Rules, 2001, as amended on 27.7.2002, in that respect an advertisement inviting applications nom the eligibie candidates was nublished in the 1 E'W V4 Present: — Mr. Manoj Paranjpe, Acivocate : For £316 petitioner. Mr. (32K. Beriwal, Dy. Adv. Gensral : For mspondent No. 1 to 3. Mr. B.D. Guru, Advocate : For raspandent N05. newspapers and in response to that advertisement more than 70 candidates apyiied. Thereafter, according to the Rules a selectkm committee was constituted and aftefscmtjnizing the applications 31 candidates were found eligible as per Almexui‘e P-3, the candidates were called for intewiew and out of total 31 candidates only 10 candidates had appealed before the selection committee. A merit list was prepared (Annexum P—5) and in the said merit list the petitioner herein seemed 72.5%, therefore, he was appointed as Samvida Shikshak Grade—1H vic‘te Annexure P—6 dated 23.8.2003 and in compliance of the said order the petitioner joined his duties. However, some written complaints were made by Puniram Banjaxa &. Bhupendra Kumar Patel to the Chief Executive Officer, Janpad Panchayat, Dabhar'a (Annexure P-7 8r. P— 8), who fonvarded the same to the Sub Divisional Oiiicer, Dabhara, On receiving complaints the Sub Divisional Ofl'lcer issued notices to the Sarpanch. 3r, Seeietary of Gram Panchayat- Sukhapali and they were directed to produce entire records regarding the selection of Samvida Shikshak Grade—HI. However, the petitioner was not given any notice or opportunity of hearing and slide order dated 26.2.2004 (Annexure P—9) the SDO set aside the whole selection process of Samvida Shikehak Grade—HI and directed the Panohayat to prepare a fresh list. Against the said order the petitioner had piefeimd an appeal before the Additional (Dollector, which was dismissed by the Additional L'Jolleetor vide order Annexure P— 10. The case of tl‘e petitioner is that the Sub Divisional ()tiicer , Dabhaia conducted the enquiry Without. giving any opportunity of hearing to the petitioner, as no notice was given to him, therefore, l—— AA (9. r m, no, 91i11cip1és of natural justice have baen vixv‘tated 311d on that Scope only the impugnad order is liable to be quashed. 4. Return ha$ been filed on behalf of respondent No.5 in which it has been mentioned that alternative remedy was available to the yet'tioner 311d he shauld have apgn‘oached the Director, Panchayat by filing a revision against the impugned order, which he has nOt availed, therefore, this writ petition is not maintainableand liable to be dismissed. It has further been mentioned that out of 11 candidates, 6 remain absent because the date 0f interview was not properly communicated to them and three candidatee namely Tilak Ram Patel, Rakesh Kumal‘ Patel, Hitendra ae well as Rambhajail were granted zero marks for not having lmowledge of local dialect, wheieae the petitioner was awaxded 25 marks. 1t has further been mentioned that being aggrieved by the selection process two candidates namely Bhupendra K'nmar Patel 85 Puni Rem: Banjai‘a had preferred an appeal and made the complaints before the SDO, who enquired the matter, recorded the statements and found grose inegnlarities and ‘illegalities, thelet‘oxe, SDG directed for &esh selection. The concerned Saipanch was granted opyortunity of heaxing, Who submitted report before the SDO, therefore, in the facts and circumstances of the case it is denied that principles of natural justice have been violated. Even the petitioner preferred. an appeal against the order of SDG where the petitioner was also heard and after considering the points raised by the petitioner the appeal was rejected, therefore, now the petitioner cannot argue that the principles of natural jiistice have not been compliediwith. ln the enquiry it was also found that the candidates who were the residents of Chhattisgarh have not been granted 25 marks for knowledge of local dialect and even the q eligible candidates have not been given noiice for appearing 1‘11 intexview that is why the SDO quashed the whole selection process. Respondent Nos. 1 to 3 have adopted above return and prayed for dismissal of the petition. I have heard Mr. Manoj Paranjpe, counsel for the petiu'oner, Mr. G.K. Beriwal, Dy. Advocate General for respondent Nos.1 to 3 5a Mr. B.D. Gum, counsel for Iespondent No.5. Learned counsel for the petitioner raised only point that Sub Divisional Officer before quashing the selection of petitioner ought to have given notice and opportunity of hearing to fhe petitioner, which was not given to him, therefore, the SDO has violated. the principles of natural justice and only on this score the impugned order is liable to be quashed. He relied upon the decisions of the Hon‘ble Apex Court in the matters of B; Ramanjini 85 others Vs. state of Andhra Pradesh £5 others reported in AIR 2002 SCW . 2069 at. shridhar Dular Vs. Nagar Palika Jaunpur reported in AIR 1990 SC 307. The other decisions on which learned counsel for the petitioner has placed reliance are Mahendra Kama: mum-asiya Vs. state of M.P. and others reported in 2002 (3) M.P.L.J. 112 8r, Jaawant Sing]: and others Vs state of M.P. and othera reported in (2002) 9 Supreme Court Cases 700. On the other hand, Mr. Guru learned counsel for respondent No.5 argued that in this case SDO conducted the enquiry from the concerned Sarpanch, perused the records and also recorded the statements of the candidates, therefore, it cannot be said that without giving opportunity to the concerned persons the SDO passed the order. He further argued that on enquiry the SDO J‘ reachexl to the conehlsion that selecfion, wa's fainted with large~ scale irregulalities and manipuhtion, fhereforé, nofice was n0: necessmy to the petitioner before (mashing the selection and in this respect he placed reliance 6n the judgment of the Hon‘ble Apex Court in the matter of Emma of India and others Vs. o. chakra!ihar reported in (2092} $ §upxeme Comt Cases 14$. Now coming to decisions relied upon by kanaed caunsei for the petitioner. As far as the decieion 0f the Hon’ble Apex Caurt iu the matter of B. Ramanjini (supra) is concemed, in Lhat case fhe .Han’bie Apex Court held that " wrir petiiian under Articie 22§ 0f the Caiwtimtion ofl'ndia was fii’ed cailing in quesiion ihe seieciion 0f ieachers, but the 3eiec-ted mndidates had not been impkaligd as pam‘es :0 the petmbn eizher in their individual capacay or in (my repwsemafz've «wania, zhe writ petitian cught to have been dismissed only on iht's ground becauee zheir substantial rights z’o held Q;§¢ice came to be vitally affected But in my Opinian, the above decision of the Hon’ble Apex Court is of no help t0 the pefitioner. In that case writ petition was filed questioning we selection of the particular candidates and they were. not manle parties, therefore, the Court held that writ petition was liable to be dismissed on that score alone‘ However, in the present case the admmistrative enquiry was conducted by the SDO in which records were summoned and after perusal of the records the SDO reached to the conclusion Lhat the Sarpanch committed luegulaxitiee, therefore, he passed the order for fresh selection. As far as the other decixion of the Hon'ble Apex Court in the matter of Shridhar Dular {suym} is concerned, in fhat case also me Hon'ble Apex Court held Hat “ Ihe High Court committed serious error in upholding the order of me Govemmem dazed 1 13.2. in, seiting aside the aypeilcmi’s appointment without giving 80 any mime Gr oppartunity to him. High Cmu't had not given notice t0 the appellant, therEfore, Apsx Court held that “ ii is an alementary principle of naturai justice mat no person should be condemned without hearing, The order of appoinmaent conferred a vested n‘ght in the appeilant to hold the post of Tax Inspector that right could not be taken away without affording oppemnity 0f hearing to him, H'zerefore, any order yasseci in violation. of yn‘na'ples of natural justice is rendered void In that case; the Municipal Board Jaunpur iseued advertisement inviting applications for appointinent to the post 0f Tax Inspector and in that advertisement it was stated that existing employees of the Revenue Department of the Municipal Boaxd were eligible for consideration along with outsiders. Respondent No.3, who was the. senior most Tax Collector working in fhe Municipai Board, was called for intelview but he refused to appear for the in‘ten/iew 0n ihe plea that the post of Tax Inspector should have been exclusivelv fllled bV Dromotion and as he was the senior most Tax Collector he should be promoted without considering any outsider. However, Municipal Board conducted the mtexview and selected [he appellant, which came to be challenged by respondem No.3 before the Service Tribunal where respondent No.3 was allowed to make a representah‘on to the Prescn'bed Authority i‘e. Commissioner. When he made minesentatioo to the Commissioner, he set aside the order of Municipal Board and cancelled the appellent’s ammintment on v the ground that respondent No.3'was entitlec'i for promotion. Then the appellant Eecl a writ petition befom the High Court 31151 in that context the Honlhle Apex Court held that “ihe Commissioner ought I’o heme given oypommity t0 the appellant before cancellitlg his appaintment". The facts of othrar judgment 1.6:. Ja$want Singh (supra) mljed upon by learned counsel for the petitivner herein are that the appenants were appointed as Lower Division Clerk (LDC) in the year 1987, however, the Collector annulled the order in exercise cf the powem under Section 83 of the Panchayat A(ihjniyam, 1981. The Collector, on a finding that the prescribed §mcedure for appointment had not been followecl, cancelled the order of appointment. The prescribed procedure is Supposed to be calling for the calldidates from the employment excharlge. Against the said onier of the Collector, the High Court was moveri, but being unsuccessful them, appeal was preferred. ‘befom the Apex Court and the Hon'ble Apex Conn held t at under the provisions of Section 83 of the Panchayat Adhjniyam, 1981, ae per sub-section (2) of Section 83, no order under sub-Section (1) could he made to the prejudice of a party inasmuch as such party has not been given an opportunity of being heard. But in the present case, the peh'tioner has not been able to point out that which statutory provieion requires Show cauee notice before enquiry into the selection process and same has been violated, meaning thereby, the petitioner has not been able to state that any statutory provision has been violated. a in the matter of Mehendra Kumar Chamasiya {supra} the petitioner was appointed on daily wages on 11101994 and was regularized vide order-dated. 4.3.199é in pay scale of Rs,950‘ 1530j-v However, pursuant to the govemment order dated 31.7.01 the Nagar Parishad mmoved the petitioner from service as yer order~dated 6. 10.2001 without issuance of Show cause notice. In that situation, the High Court held that the petitionar was Taken initially 011 daily wages aiid workfng on vacant sanctioned pOSt, which was mserved for backward dass and the petitiormr belongal to the same ciass. DPC was flxed to consider his ca$e for regulan‘zation and duly constitutcd sclecu’on committee considexed his case and passed resolution for mgularization of the services of the petitioner. Pursuant thereto an order of regularization was passed and the yetitioner was appointed on pmbation for a period of two years. Durhlg that yeriod the Government Without giving anv notice to the petitioner removed the petitioner. On these facts the Court held that “the peiitioner services could not have been dispensed with without giving opporiuniiy of hearing i0 him.” But the facts of the present case are quite different which will be deait with later. 10. In this; connection the decision relied upon by leained counsel for respondent No.5 is relevant in which the Hon‘ble Apex Court after relying upon the earlier decision of the Apex Court in the matter of Krishan Yadav Vs. State of Hary‘aua held fllat “when? the immre and the exieni of illegaliiies and inegzdan'ties committed in» conducting a selection have to be scrutinized in each ease so as to come io a conclueion about future course of aciion i0 be adopted in the matter. If the mischief piayed is so widespread and all- pervasive, affecting the result, so as to make ii difficuit i0 pick out Q ihe persons who have been uniawfuiiy henefiied or wronwixlly (iepn‘ved of their seleezion, it will neither be possible nor necessary to issue individual show-cause notices to each selectee. The only way om would be to mnoel the whole seieotion. Motive behind the irregularities committed also has its relevance”. in the case of Krishan Y'adav the allegations of favouritism and arbitrariness in holding the selection for the post of Taxation Inspectors by Subordinate Selection Boani were made. Those candidates whose performance was excellent were not selected. An inquiry was ordered by the Supreme Court to be held by CBL The report revealed act of favouritism, selection without intexview even on the basis of flake or ghost interview, tampen‘ng with the records and fabrication of documents etc. In such Circumstances, it was held that entiu: selection was vitiated even in lespect of those who had already been appointed and had been worki‘ng for a yast few Vem . In the case of Union of India Versus O. Chakradhar (supra) the Railwav Recruitment Board issued an advertisement for recruitment to the posts of Junior Clerk cmnTypist, candidates were selected and appointed and they were appointed. Later on, after three years some complaints were received regarding irregularities in the conduct of examination and CBI enquiry was conducted in which serious nature of inegularities were noticed, therefore, the Raiiway Board took ’a decision to cancel the entire panel and to terminate the services of all the candidates appointed. 1 1. If we look into the decision of the Hon'ble Apex Court in. the matter of Mls Bharat Barrel £5 Drum Manufacturing Vs. L.K. Bose and others reported in AIR 196'! SC 361 the Hon’ble Apex Court while explaining the principle of namral justice held that; 1 “..while considering the question, court should not proceed as if there an: any hnlexible rules of natural justice of universal application. Court has to consider in each case whether in light of facts and circumstances of case, nature of issues involved in enquiry, nature of order passed and inwrest affecmd fheresby, a fair and masonahk opportunity of being heard was mmished. Again in the mattcr of K.L. Tripathi V. State Eank of India and others rcyorted 1'11 AIR 1984 SC 273 ‘Lhl: Hon’blc Apex Cnurt held that: (K Principles of natural justice have been violated or not has to be judged in the background of nature of charges, the nature of investigation conducted in the background of any statutory or relevant rules governing such enquin‘es, The basic concept is fair play in action administrative, judicial or quasi—judicial. The concept. of fair piay in action must deoend upon the particular lie, if there be any between the paities. it is true that all the actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether the principle of natural justice would be applicable to a particular situation or the ouestion whether there has to be judged, in the light of facts and Circumstances of each particular case The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objecn've manner with regard to the relevance of the materials and reasons. The rules of natural justice are ilexible and cannot be put in any rigid formula.” 12. New, if we look into the facts of the present case in the light of above decisions, the Gram Panchayat Sukhapali invited applications for recruitment of Samvida Shikshak Grade-III and ultimately, 31 candidates were found eligible and they are called for interview. However as per result, only 5 candidates appeared before the selection committee and others were absent. In this case 25 marks were fixed for having knowledge of local dialect and as per prescribed procedure the candidates who were having knowledge of 10031 dialect were entitied for 25 marks artd if any candiclate was not conversant with the local dialect then he was to be awarded zero marks. The comphints regarding irreguiarities in selection were made. to the C.E.O, Janpad Parishad, those complaints. were sent to the SDO for enquily, the SDO called for the records from the Saxpanch of Gram Panchay'at, Salpanch was given opportunity of hearing and dun'ng the. course of enquiry SDO found that even proper noticce for ammaring in the mtexview were not given to the meritorious candidates and in that respect candidates namelv Naresh Kumar. Lalit. Kumar, Jvothi Kumar, Dhandra Kumar, Sharat Chandra &, Topendra Kumar were examined and they had stated that even the nou'ce of intexview wae not given to them. It wae further obs‘erved that. the petitioner herein was the candidate whoee percentage of marks was lowest among all the candidates and he was given 25 marks for knowledge of local dialect whereas other candidates namely Tilak Ram Patel, Rakesh Kumar Patel, Hitendra as well as Rambhajan Patel, although they are the xesidents of Chhattisgarh and having knowledge of local dialect, were granted zero marks. Therefore, the SDO reached to the conclusion that there were mass irregularities in the selection, as such he set. aside the selection process and ordered for recalling all the candidates for interview afresh and to select the elig'blc candidate Against this order the. petitioner preferred an aypcal before the Collector, who dismissed the appeal agreeing with the finding of the SDO. Before the Additional Collector the point of violation of principle of natural justice was raised by learned counsel for the petitioner and after hearing counsel for the petitioner, the Additional Collector held that other local candidates were given zero marks regarding the imowledge of. local. dialect whemas the petitioner, who was lowest and last candidate in the men‘t 1i$t_. was given 25 marks, whereas the other candidates were also knowing the local dialect but deliberately they were given zero marks, The Additional Collector further held that no notice was given to the men'torious candidates at their residence for appealing before the selection committee; as such they could not appear before the selection committee. Themfom, the Additional Collector affiimed the Older of the SDO. Even before the Additional Collector counsel for the petitioner could not argue and raised any point that 110W the order of SDO was perverse, merely by saying that no opportunity of hearing was given to the petitioner by the SDO, the order cannot be set aside. When the SDO conducted an enquiry by calling the record and after giving opportunity of hearing to the Sarpanch of ' the Gram Panchayat, he reached to the conclusion that notices weie not given to the candidates for appearing before the selection committee and even locai candidates who were knowing local dialect were given zero marks,,whereas the petitioner was the only candidate to whom 25 marks were awarded. In order to set aside the order of the SDO on the ground that no opportunity ofhean'ng was ‘g'iven to the petitioner, counsel for the petitioner ought to have raised the valid points showing that how the order is perverse and how the petitioner could have explained and proved the finding of the SDO to be perverse if fife opportunity of hearing was given to him. In fact, everything was recorded in the order of the SDO and the petitioner was required to assail those findings on facts about the perversity of findings of SDO in the appeal saying that had the petitioner was ailowed to appear and argue before the SDO he could have explained and proved that the CS L notices W613 given to the other camiidates for appearing befom the selecfion committee, simiiarly that even those local candidates appoamd for interview were not knowing the iocai dialect. Therefore, in the. circumstances it cannot be. said that the. petitioner’s right stand seriously prejudiced by not giving notice to him by the SDO before quashing the petitioner‘s selection. 13. In the result, for the afomsaid reasons, the petition of petitioner desexves to be disiissed and accordingly, it is digmiesedv t ,,. Sd/~ e ' ‘L.c.BHADoo Judge xWW «ewe a. W W ‘ “ ‘Rx 2