H15}! COURT OF CHHATTISGARH BILASFUR SENGLE EENE :M $ HGNaBLE SHRI MANENDRA MOHAN SHRIVASTAVA J. on gSg No. 76012005 Sham Kumar Kasharwani Versim State of Madhya Pradesh (now C.G.) and others G R§ER I3JfiANUARY, 20 Sdl- _ dra Mohan Shrlvastava Jl§é$a manin W Writ Petiti PETXTEONER RE$PQN§ENTS POST ON 10 _ } Writ Petition gSE No. ’?§0i2i305 Sham Kumar Ksshamrani, aged about 26 yams, son of Shn' Bharatlal Keshwarwani, N PETI’NGNER Jum‘or Gatiaghat, Teacher, Disiirct Jullior Bilaspur Pn‘mmy School, VersuS of Secrcteuy, MP. Vallabh School Bhawan, Educati011, Bhopal Govemm€nt 2. The Bhopal Director, Public Instructions, MP. e Statw’ r5spondénts {ER’DER (Passed on 19’ 01.2010) Village Gorakhkpur and not {one of the eligibility requirement gs stateti in villago Gaciaghat, whomas tile advertisement was {heat Where the school is situated. the candidate should be resident 0f viilage 1 -2- %¢ IO . Fact 36C€ssaxy for aéjudicaKion af contraversy, as stated in the petifiorL, 31‘s that Tha ativm‘iissmsnt was publiShed inviting appiication £16m éandidates of rural aréas for appointmsnt to the past of Junisr Teachers 011 fiksd pay of RSSOOf— pm month in furthm‘ance of the Govemmsnt’s policy to promote education in mmote rural arsas. Such advoitisemonts wore published by rospoctive Block Education Ofl’icor of Bilaspur Distm'ct for appointment of Juniom Teachers 1'11 Juniors Primaiy Schoo1s of each Viilage, includijlg Village Gadaghat in Block- Mungdi. For selection of candidate for the said post, a Committee was constituted and the Committee scrutinized appiicatio‘ns of the candidates irichiding that of the petitiooer for appointment to the post of Junior Teacher in Junior Primary School, Gadaghat. Aiong with petitioner, 3 more persons namely Maniram, Saligram anci Dinesh had also applied for the said postxWhile the petitioner was possessed of BA. (:iegree} quaiiiication, other candidates were only/matriculate i.e. passed higher secondary school examination. . After selection, the petitioner having been found to be most suitable candidate based on his qualification and performance in inteiview and on assessment of merit and suitabiii‘n,’ in all respect and upon due yeriiication of his eligibility was appointed to the post of Junior Teacher for JunionEriniaiy School vide order of appointment order of Annexure A-7 dated 12.12.1992}. Pursuant to the appointment ‘order, the petin’oner joined on 31.12.1992 and performed his duties as Junior Teacher in the schooLfroni the date of his joining. it is the case of the petitioner that one Saligraini‘one of the unsuccessful candidates for the post for which, the petitioner was selected and appointed, having f$ed in the selection, started making false, frivolous and malicious complaint against the selection and appointment of the petitioner on - g tha gmumi that the pa’ti‘iioner i5 no”: a msidenE {3f viEage Gadaghat 0n m6 basis of said complajmt, a notiw was issuai to the yatitiona‘ vide Ammxm‘a A6 datsd 2.2.1993 mquiring ths pemimier to appear befare thE Sub Di‘SiQnai Officar Mungsli 0:1 3.2. 1993 and submit his reply agaiuSt th€ comp1a1'11t. In msponse to th€ said notice, the petitionér submitted his mply, Axmexum A—g a11d filed various documents i0 prove tha’i he wae resident of Village-Gadaghat. After the reply, impugned order of Annexure A—il dated 19.5.}993 was passai by the responderit No.3 terminating sewices of the petitioner. Aggrieved by the Said orcier, the *geti‘tioner has iiled the mstant peh'tion. Respondents by filing their return have justified their action, of temsination of the services of the petitioner on the submission that after the appointment of the petitioner, complaints were receivecl to the effect that. petitioner is not. a resiclent of village Gadaghat, upon which a notice was issued to the petitioner and after reply of the petitioner to the saicl notice, the Sub Divisional Oiiicer conducted inquiry regarding bonafide residence of the petitioner and came to the conclusion that the petitioner is resident of village Gorakhpur and not village Gadaghat. On the basis of the report, the appointing authority i.e. Dy. Director, Education, District Bilaspur/passed the order of termination. The petitioner gas assailed the order of termination on the ground that the impugned order of termination has been passed in utter violation of ‘a principles of natural justice inasmuch as after receipt of reply of die petitioner nothing was ineard and in the inquiry before the S.D.O, the petitioner was not allowed to adduce any evidence nor evidence of viliagers were recorded. Learned counsel for the petitioner submits hat the S.D.O was obiiged to hold proper inquiry which has not been done. It is also submitted that Ol gz the order was passai on the basis of inquily wifhmlt censidering van'ous docummus submitted by th6 petitionsr and submiSSions of Jrhts inquiry report of S.D.O and without giving any apportunity of hearing to the petitioxmr in respect of inquiiy raport, and without ths post of Jum‘or Tesacher fOr Juniar Primary School Gadaghat, thE Li petiiiongr was selected being the/ most meriton'ous camiidate vide appointments were to ‘%e maeie fmm amongst residents of the Village where the school-is situated. Thcugh the petitioner has not filed the A—S which contains such eligibility conditions. This assertion of the - petitionér ha$ not been disputed by thE rsspomients; on th€ other hand réspondsats haw also stat€d that on€ of the condiu‘ons wa$ that the calldidata should be resident of the vmage where the School is situated. AmeXure A—S filed along with the petition contained various eligibility conditions. In clause -4 thereof, it has been stated that the female canc‘tidate of the Village where school has been openeci shall be given preference. If no female candidate is available, male camiiciate would be selected. {t has also been provided that if no male candidate of that village is available then canclidates of nearby villages may be selected. The said clocument of Annexui‘e A—5 also shows that the candidates were required to submit cer’diicate of residence. The fact that the petitioner was selecteil and appointed shows that at the time of appointment the certificate produced by the petitioner with regard to his residence was accepted and after satisfaction with regard to the eligibility of the petitioner, he was appointed by the order of appointment dated 22. 12. 19912. The case of the respondent is that upon receipt of complaint, a notice was issued to t‘ne petitioner vide Annexure A—8. A perusal of the said notice would Show that by the said notice the petitioner was informed that a complaint has been received complaining that petitioner doesaiot belong to village Gadaghat and in his name there is a Masaia factory at Villagq Setganga. By the said notice petitioner was required to appear before the SDG Mnngeii on 8.2.1993 along with certificates and also 'toersiigmit his reply. Pursuant to the notice petitioner submitted his replyof Annexure A—9 in which he stated that he is resident of viliage Gadaghat, Tahsil—Mnngeli, Distt. Bilaspur and his father owns agricultural land at that place which is looked after by the petitioner. The petitioner denied that he is resident of Village a« ~ v gM Gorakhpur . Accordmg to ths patitiomir a$ staisd by min in his réply, the &istance bEtwe€n two ViEag'es was only 4 km. and soma of 1116 imambem of his family mside at Gorakhpur. The paritjomar aim) statexi tha‘ in fact ”(116 school haS been opmami k1 11$ hou5€ at. Gadaghat. Th€ patitionCr also Speciflcally deniod that he owns any Masala factory at Setgaxlga, The petitioner also highlighted in hiS reply that: if at all there was ally dispute with regard to his eligibility, the complainant woulii have Submitted such a complaint earlier as the interview was held on 8.9.1991. It was only when the petitioner was selected and the t“ complainant could not succeed then a false and malicious compliant has been made. Along with his reply the petitioner enclosed several documents including copy of B—l miasra and certificate of residence. in para 6.04 of the petition, it has been categorically stated by the petitioner that he submitted his reply along with copy of Annexures A— 2, A~3, A—6 and A—7. Annexure A—4 shows that the petitioner was resident of Village Gadaghat, Tahsil Munglei. Annexure A—3 reveals that the father of the petitioner owned agricultural land in village Gadaghat. It has not been denied by the respondents that these documents were not. submitted by the petitioner along with his reply and therefore I have to hold that it is admitted position that these documents were submitted. by the "petitioner along with his reply. This is also clear from Annexures shown to be épnended along with reply of Annexure Ae9 filed by the petitioner; 10. The petitioner has alsofoategorically stated in the petition that after he hled reply, no further optiortunity. was given to him to adduce evidence. There is no material placed on record by the respondents to show that any detailed inquiry was conducted by $3.0. allowing petitioner to participate in the same to adduce evidence oral or documentary i0 1‘6bu‘t tha allegation. Momevw, them is 11G ma'imial on récord to Shaw That ths adverse dccuméwn’taly material callscted agaiast the petitionér wars ever dischgsd 10 him so as to cnabie him to oger his expkmation t1 rabutta}. Inquiry repoyt of Annexurs R— 1 rscords that m oréa to substantiate mar rsspective claim a3 application containing signatures of residents of Viilage were also submitted. in the petition, it has also been stated by the petitioner that number of villagers of village Gadaghat haci submitted application to the S.D.O. Munge1i specifically stating that the petitioner is resident of their village i.e. Gadaghat. A copy of the said application has been placed on record as Annexure A— 10. The report vaguely records that both the parties to substantiate their claim submitted application containing signatures of the residents of village. What application was nled by the complainant, What were its contents, who singed it etc. has not been stated in the report. The inquiry report further reveals that the S.D.O. called for a report h‘om Patwari in which it was stated that the name of the petitioner is recorded as voter in the voter list of village Gorakhpur and that. the petitioner has taken one room on rent from Gram Panchyat Setganga for opening one flour mill in respect of which one receipt of rent dated 2;..W4J991 was issued showing his place of residence as Gorakhlpur. ‘5 S.D.O. in his‘rep‘ort relying upon the said voter list concluded that the petitioner is resident of \Eillage Gorakhpur which comes under Grain a Panchyat—Boda. 11. From the material available on record and the pleadings, l fmd that proper inquiry was not held in. the case of the petitioner before terminating his services. The petitioner along with his reply had submitted documents from which it is evident that he was resident of village Gadaghat. Moreover, the petitioner had also submitted an .t WW“) mwawaaa. admow .r swan-m w application which contains signaturé of X‘Esidents of village to suppozt hi$ caS€ that h€ was resic‘tsnt of Vinage Gadaghat. it appears that after receipt of repiy of the patitioner aad suppomng documents, the S.D.O. cedied for some report from Patwmi, whereig Pa‘rwari stated that the name of the petitioner iimis place in the voter list of village Gadaghat. Further ii was also stated that the petitioner had taken orle room on rent in Gram Panchayat Setganga for running flour mill and issued a land receipt dated 21.4.1991 in which his residence was shown to be Gorakhpur and that after getting appointment, the said flour mill is K run by his brother. The report of the Patwari constitutes an adverse material against the petitioner. In fact, this Patwari report was made the basis for the S,D.O. to record a finding to utter prejudice on the petitioner that he was not resident of Village Gadaghat but of village Gorakhpur. However this was not disclosed to the petitioner. Non— disclosers of such a material adverse report seriously prejudiced the case of the petitioner as the petitioner had categorically come out with the case that he is resident of village Gadaghat and also produced various evidence to support his case, along with application attached by large numbers of villagers residing in village Gadaghat. The S.D.O. igas duty hound to disclose adverse material collected behind the back of the petitioner“; There is no material on record nor any assertion of the respondents to shop? that either the report of Patwari or the document annexed therewith, if any, Wherever supplied to the petitioner. The petitionerhad thus no opportunity to rebut the adverse material collected behind his hack bythe S.D.O. This omission on the part of the respondents resulted in serious violation of principles of natural justice and it cannot be said that before termination, a proper inquiry was held giving proper opportunity of hearing to the petitioner . ‘\ \ \ g) 12. Grarit of Gpportum’ty of haaring is met am empty formaEity. It is wsH Settkd thai £11 inquiry against a pémon on certain allegation, not only allagations am raquired t0 b6 disclosed but aISO adv€rse material and circums‘zances afe raquireé to ha disclo ed $0 as to Enab 6 the pagan cancemed to, e§6CtiV€1y defence the allegations by offenlng his taxplaixations in rebuttal of Those adveme maten'al. Though a Show cause notice was given to the petitioner, whiie holding inquixy,‘ petitioner was not given any opportunity to participate in the inquiry nor adverse material collected behind his back was ever dieclosed to him. It is also fonnd that the said. report was forwarded by the S.D.Ol to the Dy. Director i.e. appointing authority of the petitioner. There is neither any document nor any matexial to show that the said inquiiy report of Annexure R~1 prepared by theSDO was supplied to the petitioner. This omission also seriously prejudiced the case of the petitioner and resulted in serious violation of pxinciples of nature justice. Had the advezse report of Patwaii anei the reyort of §DG been supphed to the peti oner the petitioner would have got an opportunity to satisfy the appomnng authonty to accept his case by rejecting adverse documents and Circumstances collecteti by SDO This also has not been i‘ne I am of the opinion that the impugned order of tennination su§ers ‘ from ‘aserious violation of principles of nature jastice anti is violating Article 14 of the Constitution of India and cannot be sustamed It is also relevant that me contents of impugned order dated 19.0. 1993 show that the Dy BHectox mecllanlcall} accepted the report of SDO without considering the reply of the petitioner. Petitioner in his reply amongst other. things, has categorically stated that in fact the school was opened in his house. All these aspects of the case were not i3. a’£ all looked into by the Dy. Director, School Education, Bilaspur and thg impugned 0rd€r was passal i above, 1 hold that arid tho order of toimination am vitiatod on account of violation of grOSs proce&ural impropxiety arm perversity, walrailting mterference by this Court under Article 226 of the Constitution of India. 14. Consequently, impugned order of Aenexure A41 dated 19.5.1998 is held illegal and ie accorciingly quashed. Petition is accor So fa: as back wages are concerned, respective Dy‘ Director shall hold an inquiry with regard to gamful employment of the petitioner. The said inquiry shall be completed within a period of 4- receipt of coey of this 0rder. lf it is found that the eetitioner was no mployment, he shall be entitled to back Wages also. n vi€w of tlm fmd'mg record€d as no proper inquiry was bald and the entire inquiiy pm‘nciples of natural justice, omgly allowed‘ months fomn the date of gainfully employed during the peiiod he remained out of e M 15. There shall be no orders as to cost. I Sd/_ Manindra Mohan Shrivastavé‘