8E>H; I.ESct: M^StIVX B^' ti W 's.c.^goagSff' '('sm)vt3,sv. ••sssm SMaii.Egwa iTsis.t ®BOIgSIKK®03;B¥I§ISSy(f •*('3*H)H'?£S'9as,E£Sja msaaiiaois .*(*d*K}*r'KaBa.. AffiBiaQ^a&aa iTaiaa ~ aaM8ISSmHO!3(8 :;*(*3']a)iwoaa<fiWttffHa-?iT'u *j;MaB^3a<,a3a;<ra' 2s'vs,.i;s/3g ' ri.OT.iaaoas sBSflo'aa.i, sasas'TOd •KaaiE ®aiCtis.tT. -STtsaeA— < 3,svsnssv •'{•d*H);'ETICTa'tE.tSXa *X»ISTO.2 0018 TOfiSHOM'UIS •B3QHag H9IH'2BS'tO aSRos'fisftiQ.Siu.wswims ;*d*s laBsj.ia/s^ssi®ssr.uioaT Ga'v't&tas'teiiBBS s'tejxa' HSMW ^B- A. OSfVQ ——.^^ISSSHI'"'3PS*S^''S^~SaS^~2%SfiiS'.1:': . 3TmaiM-^t£^g3s,iMg(tI''SE'8a.%7SSSS'^3''3l5€%i'':agi~'g? >9i '>^Q 3 .t- ^ <: w ii;::. yi' "--iAiai HIGH CQURTOF CHHATTLSGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRiVASTAVA.J. PETITLQNER Writ Petition(s) No.1605/2005 Ramesh Kumar Shrivastava RESPONDENTS > Versus State of M.P. and others FOR PRONOUNCMENT OPORDE8 Sd/- Manindra MohanShrivastaval Judge i HIGH COURTOF CHHATTISGARH : BILASPUR SIMG1.MBENCK: HON'BLE SHRI MANINDRA MOHAN SHR1VASTAVA.J. PETITIONER RESPONDENTS Writ Petitionfs) No.1605/2005 Ramesh Kumar Shrivastava Versus State of M.P. and others Appearance: Shri Atul Pandey, counsel for the petitioner. Shri Ajay Dwivedi, Deputy Govt. Advocate for the State/ respondents. ORDI (Passed on -5-'—May,2010) By this petition, the petitioner has assailed legality and validity of order dated 12-06-1^7 (Annexure A-7) passed by the State Govt. and show cause notice dated 05-07-1997 (Annexure A-8). (2) Case of the petitioner is that an advertisement was issued for appointment to the post of Lower Division Clerk. This was a special recruitment drive and the appointments were to be made only from amongst handicapped persons. Further case of the petitioner is that two posts were advertised. Petitioner also applied for the post of Lower Division Clerk. A calt letter was issued and the petitioner was called for typing test as also for interview on 30- 12-1^3. The petitioner possesses certificate of Higher Secondary pass as also possesses Himli Typing pass certificate. The certificates have been placed on record as Annexure A-2 & A-3. Later on, after selection, the petitioner was appointed on the post of Lower Division Clerk vide order dated 17-01-1994 (Annexure A-4). The petittoner submitted hisjoiningon21-01-1994videjoining report (Annexure A-5). In order to show that the petitioner is a disabled, (t. petitioner has atso placed on record disability certificate (Annexure A-6). Later on, after more than three years of his appointment, govemment directed vide his letter dated 12-06-1997 (Annexure A-7) to terminate the services of the petitioner on the ground that the petitioner does not belong to the category of <? handicapped person. Pursuant to the aforesaid direction of the government, the respondent-Cotlector issued impugned show cause notice dated 5-07-1997 (Annexure A-8) to the petitioner proposing termination of his services, in view of the government directions. TTie petitioner was required to submit disability certificate within 15 days. The notice stated that ifthe petitioner faite to submit necessary certificate or remains absent, ex parte action would be taken against him. (3) Assailing the aforesaid communication dated 12-06-1997 and show cause notice dated 5-07-1^7, learned counsel for the petitioner submfts that at the time of initial appointment, the petitioner had submitted his disability certificate to the effect that he was a handicapped person and suffering from permanent disability to the extent of 15%. A copy of the certificate has been placed on record as Annexure A-6. It is argued that respondents while making appointment had scrutinized petitioner's eligibility with reference to the disability certificate (Annexure A-6) which was issued by the District Medical Board and thereupon he was appointed. It is further submitted that the petitioner had honestly disclosed his credentials and qualifications etc. and it is not a case where petitioner in order to procure appointment, played any fraud or misrepresented the respondent authorities. Further submission of learned counsel for the respondents is that petitioner after having been appointed, 'it was not open for the respondents to allege that he was not eligible on the basis of cireular dated 06-08-1986 issued by the Govt. of India (Annexure R-1). It is argued that the standard laid down bythe^Govt. of India jn its circulardated ^.^^^l^ufc.y.. 06-08-19^ (Annexure R-1) wherein some criteria was fixed, were not applied and at the time ofselection, all that was required was that the applicantshould suffer from disability and nothing more. Leamed counset for the petitioner further submfts that in compliance ofthe nottee dated 05-07-1997, the petitioner submitted his representation along with disabitity certificate (Annexure A-6). The other submission of learned counsel for the petitioner to assail the action of the validity is that the respondent-Collector does not have the authority to issue the notice, as the petitioner was appointed by the Assistant Commissioner, Tribal WeHare and he alone could have taken the action. The last submission of learned counsel for the petitioner is that the impugned action is violative of Articte 14, 21 and 31 1 (2) ofthe Constitution of India as also viotative of Rule 14 of M.P./C.G. Civil Services (Classification, Control & Appeal) Rules, 1966 (For short "the Rules of 1966"), as the respondent/State Govt. decided to terminate the services of the petitioner by holding that petitioner did not belong to handicapped category and ineligible without affording him any opportunity of hearing. The impugned notice dated 05-07-1^7 was only in compliance of the government's direction, as the issue had already been pre-judged and the Collector was bound to pass the order against the petitioner. (4) Per contra, submission of learned counsel for the respondents is that the petition is not maintainabte and the same is pre-mature, as th'e impugned notice dated 05-07-1^7 required the petitioner to show cause why his appointment order should not be cancelled and the petitioner without vraiting for the decision &n the part of the respondent-Collector, filed this petition against the show cause notice, and therefore, the petition is not maintainable. tt is submitted that the order of cancellation was yet to be issued, after hearing the petitioner, but the petitioner even before that rushed to the Court without submitting any reply to the show cause notice and without vsaiting for an order on the show cause C7' notice. It is further submitted that a complaint was made to Lokayukta with regard to illegal appointments which were made by the then Assistant Commissioner, Tribal Oevelopment, Jagdalpur. On complaint being made to Lokayukta, a criminal case was registered under Crime No.101/1995. It is also submitted that a report was submitted that the persons, who did not belong to the category of handicapped persons prescribed under the Rules, were given appointment orders. According to the instructions issued by the Govt. of India on 06-08-1986 (Annexure R-1), various concessions/benefits were available only to the category of moderates, severe and profound/tota! groups of handicapped persons and not to the mild groups. The minimum degree of disability should have been 40% in order to be eligible for any concession/benefrts. It is further submitted that as according to the petitioner himself, his disability is 15 %, his appointment is wholly illegal. (5) The'preliminary objection taken by the respondents with regard to maintainability of the petition rests on the submission that present petition has been filed against the show cause notice dated 05-07-1^7 which was only a proposal and the petitioner was required to submit the certificate of disability. A perusal of notice dated 05-07-1997 (Annexure A-7) discloses that the said notice was issued by the Coltector in compliance of letter dated 12-06-1997 (Ahnexure A-7) issued by the Under Secretary, Tribal Development, Govt. of Madhya Pradesh. A perusal ofcommunication dated 12-06-1997 shows that the decision was taken at the government tevel to terminate the services of the petitioner on the ground that petitioner does not belong to the category of handicapped persons. The impugned notice dated 05-07-1997 reads that in view ofthe government's order dated 12-06-1^7, petitioner's appointment is proposed to be cancelted. The petitioner was required to submit disability certificate within 15 days. The petitioner had already submitted his disability /Jr^i\ n /' -7 '•^fe.SiS*1 certificate at the time of his initial appointment. A close examination of the aforesaid notice dated 05-07-1997 issued in the context of govemments order dated 12-06-1997 shows that the matter had already been decided at the government level and the Collector only acted in ftirtherance of the same. The impugned notice, in the opinion of this Court, only requires the petitioner to submit the certificate. In the retum also, respondents have taken astand that the appointment ofthe petitioner was wholly iltegal as he is not entitled to the beneffis/concessions as handicapped person because his disability is less than 40%. From the government's letter dated 12-06-1997 (Annexure A-7), contents of the notice dated 05-07-1997 and the averments made in the return, this Court comes to the conclusion that the respondents had pre-judged the whole issue. 1 am therefore not inclined to uphold the preliminary objection with regard to maintainability of the petition as the respondents have already pre-judged the whole issue. (6) From the letter dated 12-06-1997 of the Government, it is clear that a decision was taken against the petitioner that he does not belong to the category of handicapped persons, and therefore, liable to be terminated. To support the decision, respondents have placed on record the circutar dated 06-08-1986 of the Ministry of Welfare, Govt. of India. According to the said circular, various concessions/benefrts are available only to those categories whose minimum degree of disability is 40%, and those who suffered from mild disability are not eligible for such concessions/benefits. Though submissions have been made by learned counsel for the petitioner that the petitioner never suppressed his disability aspect and other qualification, neither the petitioner nor the respondents have placed on record the advertisement, pursuant to which, the selection was made. Though the respondents maintained that the petitioner was not entitled to the benefit,there is nothing on record to show i '•'^^^. ^ %-^y^' -y' V whether the cireular issued by the Govt. of India on 06-08-1986 was adopted and applicable in the State in the matter of grant of benefit/concession to a handicapped person. Respondents have not placed on record the State Govt's policy with regard to grant of benefit/concession to handteapped category. Moreover, it is apparent that the State Govt. took a decision to the serious prejudice of the petitioner without affording him any opportunity of hearing. The Collector only issued a notice on 05-07-1997, issue, having already been pre- judged by the govemment, requiring the petitioner to submit his disability certificate though the petitioner had already submitted his disability certificate at the time of selection. 1 am therefore unable to uphold the action of the respondent authorities. Petitioner was entitled to due and proper opportunity of hearing bythe State Govt., who had taken a decision against the petitioner. The stand taken by the respondents in their return atso shows that show cause notfee dated 05-07-1997 vras an empty formality. (7) In this view of the matter, decision of the State Govt. that the petitioner did not belong to the handicapped category and that he is liable to be terminated, suffers from violation of principles of natural justice. It would be a matter of enquiry whether the petitioner had obtained appointment by practicing fraud or misrepresenting the authority or in collusion with the then Assistant Commissioner, Tribal Welfare, Jagdalpur and vsrfiether the government circuiar dated 06-08-19^ was adopted and made applicabte by the State Govt. in the matter of grant of benefrt/concession to the category of handicapped persons. Sincethe decision ofthe State Govt. wouM affect the source of livelihood ofthe petitioner, in all faimess.the government was duty bound to issue a show cause notice to the petitioner, hokl proper enquiry and then only take a decision with regard tothe caseofthe petitioner. Consequently, the letter dated 12-06- 1997 in so far as the petitioner is concerned and notice dated 05-07-T!997are hereby quashed. The case is remitted to the respondent-State Government for due and proper enquiry. The respondent No.1 shall afford due and proper opportunity of hearing to the petitioner and take appropriate decision with regard to the case of the petitioner in accordance w'rth law. The said enqujry shall be concluded asexpeditiously as possible, not later than 6 months from the date of receipt of a copy ofthis order. Vide order dated 08-08-1997, status quo as obtaining on that date was directed to be maintained in so far as it related to the case of the petitioner. Ifthe petitioner is continued in service by virtue of the aforesaid interim order dated 08-08-1997 passed eartier in this case, he shall continue in service and the same will be subject to final decision as may be taken by the State Govt. in the enquiry as directed above. (8) The petition is therefore a!lowed. There shall be no orders as to costs. Sd/- ,' t. Manindra Molian Shrivastaval Judge y Tuniiane