HIGH COURT OF CHHATTISGARH AT BILASPUR - w D B HON’BLE Mr JUSTICE SUNIL KUMAR SINHA & HON BLE Mr JUSTICE RADHE SHYAM SHARMA 9 WRIT APPEAL No.395l2011 APPELLANTS Anil Kumar smrma; S/e Shri» ‘. mRamkumar Sharma, Aged ¥aboutj 43 years Occupation Gram Sahayak Development Block Konta District Bastar (now C G) R/o Village and Post Bhagwasa, y Tahsn Gohad District Bhmd (M.P.) .2 Parwendra Kumar Sawita; Sic r Sopal Prasad SawitaiAge‘d’about v ' 44 years, Occaiton Gram, Sahayak Development Block Konta Distrlct Bastar (Now C G) Dlllp Kumar Mtshra S/o Awadh Blhan Mishra Aged about 43 ’ years Occupatlon Gram Sahak Development Block Konta District Bastar (Now C.G.) Harnarayanr Goswami S/c Uktrlal Aged about 45 years ccupation Gram Sayakak Development ‘ Block Konta if ;\ Dlstrrct Bastar (Now C G) 15 Rajendra Kumar Goswaml SID ‘ Ramswaroop, Aged about 43 years Occupation Gram Sahayak Development Block Konta Drstnct Bastar (Now C G) 6 Vuay Smgh Bhadonya Sle Kunwar Srngh Bhadorlya, Aged about 28 years Occupation Gram Sahayak Development Block ‘ Konta District Bastar (now C G) 7 Pradeep Kumar Mlshra S/o Awadh Bihari, Aged about 39 years, Occupation ‘ Gram ’r ‘ Sahayak Development Block J . Konta Drstrrct Bastar (now C G) Ball Ram S/o Gopal Ram Aged about 46 years Oocupatron Gram Sahayak, Development Blockk Konta, District Bastar (now C'L'G.) _ W- O r C39 WRIT APPEAL No.395l201 1 - Versus 1 State of Madhya Pradesh s,‘ Through 7the ' Secretary;f*' Depattment of Panchayat and gm Social Welfare, Bhopal (M;P.)_ ‘ ‘ Joint Director, Panchayat and Social Welfare, District Bas‘ta'r (now C.G.) RESPONDENTS Dy Director Panchayat andr Sacral Welfare District Bastar, (nowC G) The Director Panchayat and“ “r Social Welfare Directorate n . ,Bhopal(M.P.) 5’ MaithiliSharan Ahirwar, Slo Shri e Kachorelal Aged aboutf‘i42 years Occupation Gram Sahayak R/o Village and Post Thona TahSil Nlwari District Tikamgarh (M P ) Rajendra Prasad Awasthy, Slo ' Shri Ram Sahai Awasthy, Age about 44 years Occupati Gram Sahayak Developme Block Biiapur District Bastar (nowC G) Umashanker Sharma S/o Remake/u : Sewak Sharma Aged about 43’ ‘ E years Occupation Gra Sahayak, Development Blo Bhairamgarh District» Bastar (nowG.G.) Rajebdra Prasad Yadav Slow Shri Sitaram Yadav Aged about 44 years Occupation Gram Sahayak Development Block Orchha District Bastar (now c G) Rajendra ’Kumar -Upadhyay,~S/o. J is, Pt. Kanshi Prasad Upadhya'y', Aged about v 42 eyear OccUpation Gram "Sa‘h’ayai Development a v Bicc Bhairamgam District ai (nowCG) a Badam Singh Yadav Sio Asharam Yadav Aged about 45/ V. years ccupation Gram“; , " i ( an d o. nt ‘i m c f"? I“ s 3 c ke m O WRIT APPEAL No.39512011 . s ha, Heard on admission ' r The appenants/petituoners have med this appeal chauengmg the, 1 order dated 29 04 2011 passed In W P (S) No 23 of 2006 by the Ieamedr Single Judge of this Court By the Impugned order the wnt pehgfon fled by the appellants and respondents 5 to 19 herein has been dismissed by I the wrrt Court The appellants were appornted on the post of Gram $ehayak byA order dated 08 07 1994 (Annexure A/2 In the wnt petition) en temperary basrs The appellants pmed the duties at their respective places m j v accordance with the apporntment order Subsequently, by an order dated t 7; 1911 1994 (Annexure A-1 in the writ petitron) the serwcee of the appellants were terminated Since no opportunity of hearing was granted a to the appellants before passrng of the termrnation order the appellants 1 1‘ challenged the same on the ground of non-observance of the principles of natural justice Learned counsel for the appellants argued that the mrrnlnadon wrthout granting opportunity of hearing was not In accordance With law ~ J therefore the Writ Court erred in law in dismissmg the writ petition - The Writ Court held that the appointment of the appellants was , purely on temporary basrs The appellants were not appornted against V I any sanctioned post The appomtments were made on the basss of memo g _ dated 6 6 1994 (Annexure R13 in the writ petition) issued by the Deputy Secretary, Panchayat & Rural Development Department Government of i, the erstwhile State of Madhya Pradesh On query, it was found that no Tb( ’ ~ WRIT APPEAL No.396l2011 - u such memo was issued by the Govemment and the memo itself was forged The Secretary, Panchayat & Rural Development Depaitment the then State of Madhya Pradesh by letter dated 11 11 1994 (Annexure Rut? w in the wnt petttlon) Informed the Director Panchayat & Social Welfare that the appomtment of the Gram Sahayak In District Bastar have been made on the bests of forged tetter dated 0606 1994 and subsequent letters dated 1608 1994 and 36681994 were also fabncated Hen the i Dlrector Panchayat & Social Welfare was dlrected toitak steps form , removal of the Gram Sabayak who were Illegally appointed and to initiate a departmental action against the Jomt Director, Panchayatx‘ 8f social Welfare, who had indulged into such illegal practicee :Theewrlt Gourt ~ ' t further held that since the appointments were bad from itsrineeptigon; the appellantslpetltloners were rightly removed and ln such caees r no necessity of gwrng opportunity of hearing to the appellants/pa toners ln Secretary,8tate of Kamataka and others -Vs-Umadevr @006) 4 SCC Pg 1 the Apex Court held that the power of a State as an - employer is more limited than that of a private employer Inasmuch as it is v subjected to constitutional limitations and cannot be exereiaedarbrtrartiy. - .Public employment in a sovereign socialist secular democratic republic ~ ~ has to be as set down by the Constitution and the laws madethereun‘der-H.» Our constitutional scheme envrsages empioyment by the Government and its instrumentalities on the basis of a procedure esmblished in that behaif Equality of opportunity is the hallmark and the Constitutton has prowded also for affirmative action to ensure that unequals are not treated as equals Thus any public employment has to be in terms of the a I constitutional scheme The Apex Court said that adherence to Artistes 14 and 16 of the Constitution is a must in the process of public employment a Adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution a court would certainly be disabled from passing an order upholding a Violation of Article 14 or in ordering the overlooking of the .1 need to comply With the requirements of Article 14 read with Article 16 of the Constitution The Apex Court further held that In addition to the equality clause represented by Article 14 of the Constitution, Article 16 kl i _ ‘i .t ce i (3‘ 9 WRIT APPEAL No.39s‘/2011 has spemfcally prowded for equality of opportunity m mattem of pubhc‘ « employment Article 369 buttresses these fundamental rights Article 309 i contemplates the drawmg up of a procedure and rules to regutate the recrwtment and regulate the serwce conditions of appointees appomtedm to public posts Because of thls the entire process of recruitment for-~ semces Is controlled by detailed procedures which specify the neces'saryp quallfcatlons the mode of apporntment etc If rutes have been made ‘ under Article 309 of the Constitution then the Government can make ‘rz’ appotntments only In accordance wrth the rules The Apex Court further hetd that Employment Exchanges (Compulsory Notlfcatlon ofVaoanctee) Act 1959 was enacted .t_o ensure equal opportunity for employment seekers lt observed that though this Act may not oblige an‘employer to employ only those persons who have been sponsored by employment \. exchanges it places an obligation on the employer to notify the vacancies that may anse tn the vanous departments and for filling up of mosey vacancies based on a procedure Further in State of Manipur & others, Vs.Y. Token Singh & others, 2007 AIR SCW 1995, the Apex Cour‘ held that the State while offering appomtments havrng regard to the constituttonat scheme adumorateo in Ar‘nctes 14 and 16 must comply With Its constituttonal duty subtect to just and proper exceptions tatgtve an opportunity of berry - conSIdered for appotntment to all persons eligible therefor Evan ; assuming that the State has not framed any recruitment rulesin terms of - - the prowso appended to Artlcle 309 but the same by itself would not confer power to make recruitments in Violation of the prowslons contained w In Arttctes 14 and 16 The Apex Court said that In the petition challenging f cancellation of appotntment lt Is for the petitioner to establish extstence of a legal right m his favour and a corresponding legal duty to continue to be 7 employed The Apex Court also said that With a View to establish his tegat . rights to enable the High Court to issue a writ of mandamus the petitioner is obligated to establish that the appomtment has been made upon- followmg the constitutional mandate adumbrated in Articles 14 and 16 The Apex Court further held that where the appomtments had been made" ‘by a competent authority or atleast some steps have been taken in that a l t v» » ~ l 1 shyna 7 (W) WRIT APPEAL No.395l20 1 1 behalf the principles of natural ;ustice are required to be complied With There rs however no arbitrariness on the part of the State In its action directing cancellation of appointments where the offers of appointment were cancelled not on the ground that some Irregularitles had been committed m the process of recruitment but on the ground that they had been non-est m the eye of law The Apex Court said that any actlon which had not been taken by an authority competent therefore and In complete vrolatlon of the constrtutlonal and legal framework ouncl not be binding on the State The Apex Court further sard vrde para 22 that» where the facts are admitted the principles of natural Justice were not required to be complied wrth partlcularly when the same would result In ln case on hand the appomtments were rtlegal smce the date of their inception They were made on the basrs of forged letter sent to the concerned authority The apporntments have not been cancelled on the ‘7 ground that some Irregularrtres were committed In the prams of p recrurtment but they have been cancelled as they were newest 1 Issuance of apporntment letter on a direction which was forged was In complete vrolatlon of constrtuttonal and legal framework and that would not be brndrng on the State We are of the vrew that the learned Srngte - observance of prrncrples of natural justice For the foregoing reasons we do not fnd any substance in the _ futllrty ‘ t appeal The appeal therefore rs lrable to be Judge has rightly held that In such cases there was no necessity of it _ dismissedw " " ’ Sdi- _ sun“ Kumar-Smha 5d,- \ Judge Radhe Shyam Sharma