' CWOV § IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) WRIT PETITION No. 3441-2003 a u I l I (J Anjani.Kumar Pandey, S/o. Shri Babulal Pandey, Aged aboutl;]_ years, Presently working as Teacher (Guruji), Education Guarantee School, Centre Darripara, Konargarh, Janpad Panchayat, Pamgarh, District Janjgir-Champa (C.G.) PETITIONER VERSUS VRESPONDENTS <L’1/ Through State of Chhattisgarh, Secretary, Panchayat 86 Social Welfare“? Department, D.K. Bhawan, Mantralaya, Raipur (C.G.) ¥V2. Collector, Janjgir—Champa—cum— Mission Director, Janj gir- Champa (C.G.) (D3. Chief Executive Offlcer, Janpad Panchyat, Pamgarh, District Janjgir—Charnpa (C.G.) 4. Gram Panchayat, Konargarh, Janpad Panchyat, Pamgarh, District Janjgir-Champa (C.G.) Through its Secretary/ Sarpanch WRIT PETITION UNDER ARTICLE \526 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF CERTIORARI, MANDAMUS, PROHIBITION AND OTHER SUITABLE WRIT OR WRITS, DIRECTION OR DIRECTIONS, ORDER OR ORDERS: The petitioner above-named most respectfully submits as underf— 1N THE HIGH COURT OF CHHAT’I‘ISGARH : BILASPUR W. P. N0. 3144 of2003 Pstitioner Anjani Kumar Pandey Versus Responcknts State of Chhaxtisgarh 8a oth€rs ORDER $ Post for 20 ~2~2GO7 Shm‘ Arvind Dubey, Palm} Lawyer for the responc‘tents No. 1 and 2. Shri Ratnesh Kumar Agrawal, Advocate for the respondent No.3. $hli 9a. K. Ben'wal, Advocata on bghalf of Shii G. K. Beriwal, Advocata for the respondent No.4. HIGH CQURT OF CHHATTESGARH AT B§LASPUR W. P. No. 3144 0f2003 Petitions)“ : Anjani Kumar Faraday ‘JsrSus Respondents : State of Chhatt‘isgarh 8a othcrs singie Bench: Hon’ble Mr. Justice $atisk K. Agnihctri. Shri Aghish Sku‘ivastava, Advocate for the Pstitimmr. O R D E R (Pa$sad on thiS20521}? ofFsbmaIy, 2007) 1. By this petition ths petitiogar challenges me iegaiity and validity of the order dated 27.1.2008 (Annexure P17), whereunder the select Est prepared for Educah'on Guarsmtee Center, Konargarh, Pamgarh, District Janggir Champa for appcintment on the post of Guruji was calmelled. 2. The mdisputable facfs,‘ according to the petitioner, axe fllat the petitioner has been imyartiug education of small children in the sehoo1 ran under the Education Guarantee Scheme {for Shari ‘E.G.S.’ )_. Damnara, Konargarh. free ofcost wef. 1.7.2000 on the basis ofhis commitment to the education. The EGG» school Wrote a 1etter (Annexure P/ 1) to the Block Development Otiicer. Biock Pamgarh for appointing the petitioner as second Gumji in the same school. Accordingly, vide order dated 1.10.2002 (Annexure Pj’z), issued bysthe Chief Executive Officer, {for short "C.E.O.") danpad Panchayat Pamgarh, the proposal for appointment of the petitioner as second Guruji was approved in the E.G.S. center / Dairigaara, Konargarhv T116 t6rms‘and conditions of appomtment was ”(hat the appointment of the patitioner as second Gmuji jn‘fhe schoo} was purely tompormy and. is based undor tho education mission, Th5 Gram Panchayat, Konargarh, accordingly, patssed tho order on 1.10.2002 (Annexure P/8}. The petitioner joined the school on 2.11.2002 (Anncxure P/4) as second Guruji and thereafter was sent for training ~ The District Project Mission Director, under fhe Rajiv Gandhi Shiksha Mission Janjgir Champa vide his letter dated 17. 1.2803 {Annexure Pg’S) intimated the GEO/respondent No.3 that the panel of teachers (Guruji’s) dated 110.2002 for appointment in Education G‘uaraixme Centers at Ricemeelpara Chandipara, Aa.Ja.Para Dhangaon a11d Darripara Konargarh, Wherem the petitioner was appointed, was contrary to the scheme as the appointments weve strictly banned. It was further stated that the respondent No.3 would be personally liable for payment of honorarium, if ahy. Thereafter, by order dated 27. 1.2003 (Annexure P} 7) the Secretary of Village Panehayat Konargarh intimated the petitiorxer that 1‘11 compliance of the order dated 17 .12003 issued by the Collector and District Education Director, Rejeev Gandhi Shiksha Mission, Janjgir Champa, the list of the Educadon Guaraiitee Ceiiter, under which the appointmerit of the petitioner was made has been caiicelled. Being aggrieved, the petitioner has tiled this petition Without stating grounds in the pleadings. Shxi Ashish Shrivastava, learned counsel for the petitioner, however, would orally submit that the [\5 gl WU‘ , \ ‘ cancdlafion of th6 appomtment 9f the petitionar on the post of second Guxuji was violative of the prillciples of natural justice as no oppommiiy of homing was providad to him. Lealned commel further submitted that once the petitioner has joined the post of seconc'i Guruji the. list calmot be canceiied withou’i affording proper opportunity of hearing to the petitioner, Thus? file petitioner seekS quashing of the impugned order dated 17. 1.2003 (Annexure P] 5) and the order dated 27. 1,2003(A11nexure P] 7) 7. Per contra, leainecl counsel appearing for “the respondents would submit that the appointment of the petitioner was contraxy to the scheme, as a Second Gnruji in the school has to be necessarily a lady candidate. The petitioner has no right to the post as the petitioner is not appointed in accordance with the constitutional scheme of the employment. There was no necessity of giving a W” notice to the petitioner as the facts are clear anci the petitioner very weil knew in advance that his appointment on the post of second Guruji was contraxy to the scheme. 8. Having heard learned counsel for the parties and having perused the pleadings and records appended thereto, it is apparent that the appointment of the petitioner as second Guruji was contraxy to the" Scheme. The scheme provides for appointment of second Guruji in case there are more than 50 children, in that event the second Guruji would be necessarily a lady teacher. The scheme as framed by the then Government of Madhya Pradesh for expansion of education under the Rajeev Gandhi Education Mission for appointment ofthe teachers, provides as under:- “§.Gtt.w.eteenznW$nm—m% auraammtmgraweng mnsmemamzstetnttdimwnmwmad ’5‘ smTzQQiwzr%5o@slf€m§iaiWmWWfmnw m%m1§xw—faammr§qmm4o$waw@ {Waé‘I Wmmmmmq€mmmaé1é>aamm wmwwwmmafwaWWwmWwm WWW%IWE§IW@WW%WW§W wm’Wa‘)?% 1w$iwmmW€Im 1W®m$m%% wiWWWWWWWHgNWWWWeEEEW wwa$mwm%mma€wwg {WWW Wm$m,wm@i$mwm :Wwiiawiw ®WW$W§$§wamWwemmwéWém r W2§am1§mWW$I€Im§f lwwaiiaif§mw $§WWWWW€W$fWW¢imw 1W$ %§%wém§.€fr‘w‘w§a%waf&3mm%@mm WWW lwmwm'w&$%aa%%u§w WIWWI” Thus, The appoinmmnt of the petitioné‘r was contraly to the €ducation guarantee scheme. On the quwtion, as to whéthm“ m6 petitioncr has a right to the post, it is we’ll settled pn’nciple of law that if the appoimnmnt of the petifioaer is dehors tho constitutional schamo, tho 5aid employee would not have a right to the post. Article 16 of the Constitution of India prohibits discrimination in case of employment or agnoointment to any office under the State on the ground of religion, caste, sex, descent, place ofbixth, residence or 4 any of them. Sub clause (3) of the Article 16 provides for framing of a law by Pariiament ill regard to a class or classes of f1 employmmlt or appomtment to an offxce undsr the Govemmsnt 9f, or in axzy local or ofher authority within a State or within a U nion temiory, any requirement as to residence within that State or Union territmy, E11 the preSent case the education guarantee scheme provides that the teachers should be a resident of the particular ward, if not possible may be of the same village, if sti11 not available then from neighbouxing village or Village Panchayat. This itself is contrary to the provisions of Alticle 16(2) of the Constitution of India. The Pariiament has not frameti, admittedly, any law for appoihtment of local residents only within the area under the scheme. o In the case of Simon of inaiaami others Vs. Saajay Faat aad athers { 1993 Sumo (2) 30.0. 494 Zr the Hon’ble Supreme Court observed as under :— “6. .r........in two cases viz., M. Palaniapparl v. Uniori of indial ahd (Suit) Rita Kumarig the Tribunal has already held that tetmination of ad hoe appointee on the ground of not being a iocal candidate is illegal. These decisions were followed and applied in P.G,James V. Union of lndia3 Where it was held that refusal to otter regular appointment on the said ground is ” illegal. These cases conclude the issue in this case. Moreover, requirement of residence in a particular territory (in this case) Union Territory of Andaman and Nicobar Islands) is opposed to Article 16(2). Under Article 16(3) only a law made by the Parliament can impose such a restriction 01‘ requirement, as the case may he... t )7 (it 1G. ll. » 12. A constitutional Bench of m6 Hon’bla Suprsme Court in the casa of Secretary, state 0f Karnataka and others Vs. Umaéevi {$3 anxi athers { (2006) 4 SCC 1 } has held as nutter:— “6. The power ofa State as an employer is more limitéd than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (see Basu’s ShOIter Constitution of India). Article 309 of the Constitution gives the Government the power to frame. rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service. conditions of appointees appointed to public posts. It is Well acknowledged that because of this, the entire process of recruitment for seivices is controlled by detailed procedures which speciiy the necessary qualifications, the mode of appointment, etc. if rules have been made under Article 309 of the Constitution, then the Government can made appointments only in accordance with the rules... .. right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right. to engage persons in ,J‘ @ various acitiss for a duration or until the work in a cap Th particular project is comploted. Once this right of e Government is roced and the mandate of the ogniz K constitutional requirement for public employent is respected, I m there cannot be much diiiiclty in coming to the conclusion u that it i ordinarily not proper for the Courts whether acting s under Article 226 ofthe Constitution or under Article 32 ot‘the Constitution to direct sorption in permanent employment of , ab those who have been egaged Without following a due process n of selection as envisaged by the constitutional scheme.” \*‘\ 13. The appointment of Guniji and second Guruji is not in accordance with the constitutional scheme of employment as it does not contemplate a proper open competition or selection of candidates from other areas also. Thus, the petitioner as Guruji has no right to the post. g 14. On the question of the principles of natural justice by a catena of decisions the Hon’ble Supreme Court and in a latest decision in P. h. Agawal Vs. State Bank of india and others { (2006) 8 S.C.C. 776 }, While dealing With‘ the applicability of the principles of natural justice observed as under:- “30. The principles of natural justice cannot be put in a straitjacket formula. It must be seen in circumstantial flexibility. it has separate facets. It has in recent time also undergone a sea change.” “39. Decision of this Court in S.L.Kapoor V. Jagmohanlé whereupon Mr Rao placed strong reliance to contend that non- observance of principle ofnatural justice itself causes prejudice e or the same should not be read “as it causes diniculty of 8 @ prejudiw", cannot be said to b8 apph‘cable 1'11 ths instant case. Thc principles of natural justiC€, as noticmi hersinbéibra, have undergone a 36a change. In View of the decisions of this Court in State Bank of Patiala v. S.K. Shauna” and Rajendl‘a Singh V. State of MP. 18 the principle of law is that some real prejudice must have been caused to the complamant The Com has shltted from 1ts eauher concept that even a smah v1olahon shall resuit 111 the order being rendered a nullity. To the princiyle/doctrine of audi alteram partem, a clear distinction has heel) laid down between fhe cases where there was no hearing at all and the cases Where there Was mere technical infringement of the principle. The Court applies the principles of natural justice having regaid to the fact situation obtaining in each case. It is not applied in a vacuum Without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannbt be put in a straitjacket formula. (See Viveka Nand Sethi V. Chairman, J.&K Bank Ltd“) and State of U.P. V, Neeraj Awasthi’w. See also Mohd. Sanaj v. State of U.P.21).” 15. In the facts of the present case it 1s not the Case oi the petitioner that the appomtment of the petitioner was in accordance with the constitutional scheme. The appointment of the petitioner, admittedly, was contrary to the scheme as the second Guruji should necessanly be a ladV candidate The prmcmles undeilying behind that seems to be equal participatlon of the man and women 1n imparting education to the local children and preference to a woman, being mbre closer to a child in natural ambicnce. Applying the above plinciples of law, as .Well settled, the ( \D yetitioner’s appointment on tbs post of second GuYLlji was centrary i0 thE 6ducation guarante€ scheme and unconstitutional and as such he has no Iight to The post. 16. 1t is fmther held that it is incorrect to say that the principles of natural justice has not been followed as it could not be put m a straitjacket formula when the facts are admitted. Hon’ble Supreme Court in Canara Bamk Vest V. K. Amstoy { (2005} 5 SOC, 32 1}, rehed on by the learned counsel for the petitiooer, heid as under : — “18. As was observed by this Court we need not to go into “useless formality theory” 1'11 detail; 1'11 View of the. fact that no prejudice has been shown. As is rightly pointed out by leaned counsel for the appellant, unless failure ofjustice is occasioned or that it Woultl not be in public interest to do so in a particular case, this Court may refuse to grant relief to the employee concerned. (See Godde Venkateswara Rao v. Govt. of A.P.39}. It is to be noted that legal formulations cannot be divorced from the fact situation of the case... ." / J ln the facts and circumstances of the case when facts are admitted, the holding of proper enquiry after giving a show cause notice would be mere formality. l7. As a result and for the discussions made hereinahove, this petition is dismissed. No order as to costs. Thakur