HI9H GOUREF CHHATTI§GARH ' BILASPUR Singlg gch; gog’ble §hri mindra Mgn smigashgg, J. MIT PENTION (5) NO.727J2005 Applican; Peemmbar Ram Sonkar : Versus Respondents sate of M.P. and omets Present:- ’ Shri S. R. J. Jaiswat, counsel for the petitioner. Shri Ajay Dwivedi, Deputy Govt. Advocate for the State. (Passed on thie day of Match, 2010) finally. With the consent of learned counsel fer the pam'es, the petition is hear (2) This petition has been med by the petrhoner assailing Iegality and vaiidity of order dated 18-024993 (Annexure A-1) passed by the respondent No.2- Deputy Director, Public inskuction, Education Distriet Rajnandgaon, by which services of the pehtioner have been tanninated on me ground that petitioner is mt a resident or ward'of sampar. i (3) k CEse of the petitioner is that he ewes/born at Viiiage Sakripar (Rudgaon) > on 12-08-1968. Sakripar isvapward (Tole) of VillageRudgaon, Gram Pancheyat Rudgaon. Sakripar is- situatedias Ward No.1 of this Gram Panchayat, Putsuant to governmentpolicy ofappointment of teacher in Junior Primary School to be opened in the Villages. apptlcahons were invited and petitioner's suihbility was assessed by the selech‘on committee which was followed by an order of appointment on the post of Teacher vide order dated 08-08-1991 (Annexure A- : V5). By this order, petih‘one'r was appointed as Teacher in Junior Primary School, Sakripar (Rudgaon), Parieheka~l<hujji. Vide order dated 12120-124991. petitioner was transferred. However. later on, atter about one year, petitioner k d was served wilh a notice dated 17-12-1992 (Annexure A-7). by which, he was informed that a compiaint has been reqeived that he does not belong to Vlllage Sakripar and isMa resident of, Rudgaon. Pehtioner was asked to chrify the distance between Sekripat‘a’nd Rudgaon and also ctarify the geogmphicai condutuon on which basis, it was etieged that the petitioner was not a resident of Viliage Sakripar it was also stated that if the petitioner is a resident of Vtiiage saknpar he may submtt domicile candidate within one month failing which submitted his reply on 22-12-1992 stating mat Saktipar is a ward of Rudgaon separated by a distance of 1 KM. and intercepted by a river. lt was also submitted that even during rains, the connectiVity is not dismrbed ln reply, it ‘ was also submitted that sakripar is not a separate village and only a ward of Village RudgaomAlong with the said reply certiticate issued by the Naib Tehslldar was also annexed which stated that Salmpar is a ward of Rudgaon and in Revenue records Rudgaon has been tecovded as Village Pentioner had also submiued he cerlihcate showing that he was a tesident of Vllage Rudgaon d that Salmpar is not a separate Village but a ward of Village Rudgaon. Thereafter nothing was heard and the petitioner was finally terminated vide V impugned order dated tam-1993 (Annemre M). (4) ' Submission of learned éounset fot the petitioner ls that impugned order of r termination from serviceis unsushinable in law as the order of termination has been passed on a non-existent ground which is contrary to facts proved and ‘ established on record. Othersubnhssion of learned counsel for the petihoner is that termination of petitioner‘s services has taken place on the ground that he is not a resident of Ward-Sakripar From the retum med by the respondents, it is i found that in order to come to the conclusion thatthe petitioner is not a resident of Village Sakripat. some enquiry was held and statemens of some persons were reeorded which were made basis for such oonolusion. This enquiry was held behind his back. The last submission of learned counsel for the petitioner is that ihe eligibility requirement as stipulated in govemment guidelines only required that the person should be a resident of that particular village and not of the Ward where school is situated. The petitioner was undeniably resident of Village Rudgaon as evidenced from aforesaid documents and this is not disputed by the respondents but die basis for termination is that petitioner is not a resident of Village Saknpar. (5) Per contra. referring to averments made in the return‘ submission of teamed counsel for the respondents is hat he impugned order of termination is just and proper and in accordance with law. It is argued mat after me appointment. one Jeevan lal Patel made a complaint that petitioner is not a resident of Village Sakripar. Uponrreceiving such complaint, notice was given to the petitioner informing about the complaint and also giving him proper opportunity to produce relevant certihcetes in order to estabiish that he was a : resident of Wllage Sakripar. Thus, it cannot be said that petitioner was not given 'opportunity of hearing before hking adver/se action against him. It is submitted that upon enquimft was found that he petitioner was not a resident of Sakripar. lt was also found in the enquiry that as the school was situated at Sakripar and , 3 though Sakripar is a ward of Village Rudgaon. the distance between Village Rudgaon and Sakripar is more than 1 KM. that too intercepted by the river, the very purpose of making! appointment of Teacher as per the govemment instruction. was frustrated. in the enquiry. it was opined mat Jeevan lat Patel was a resident of Sakripar, and therefore, he was suitable for such appointment \\ in me school at Sakripar. \ \ "\ \ \ \ 1 \ \ \ (7) Tha gavemment poncy wnh regé(d to appointment of teachets in Junior Primary School in remoteyiliages, placed on lecord as Annexuro A—3 and A-4 dated 13-09-1990 and 20-09-19w,provided that in moso‘Junior Primary Schoois to be opened in Villages of meager population, leachers would be made available on iocal basis. It has been provided that the teacher should be of the same village or nearby village. lt is also stated that if the teacher in the same village/Ward of village possessed of minimum qualiticatr'on is not available, appointments wouldbemade from amongst eligible and qualmed candidates, who are resident of nearbyivillages. A perusal of the two circulars of the ’ govemment would show that a resident of the village widrin which me school has been opened. was eligible for appointment as Tmher. Not only this, in the absence of any suihble candidate of that w‘llage. even Va candidate of nearby village could be appointed. (8) From the material placed on record. it cannot be disputed that Sakripar is ‘a yard oi village Rudgaon. Farmer, $akripar has not been separately recorded I as a village mm records. This is evidenced from the certihcete Annexure A-9 placed on record bythe intitioner. The said oertmcate has been issued by a the Naib Tehsildar and-was placed for perusal of respondent-Deputy Director, pursuant to his notice datedgZ:12~1992. No material has been placed by the respondents on record to showtha‘tSakripar was a separate village. Even in the enquiry which has been held by the respondents, Sakripar has been treated as \ VillagelWard without any Specinc finding in this regard. No hndim has been recorded that sampar is 'a dmerent vmage. a” (9) True it is that notice was given to the petitioner on 17-1 2-1992 requiring him to piace documents/cemhcates in proof of his claim that he is a resident of Sakripar. it is found from the retum and documens filed by the respondents that in the enquiry. statement of certain persons were aiso recorded. Annexure R-1- Enquiry Report shows that a finding was recorded that petitioner was not a resident of ward Sakripar and Sakripar is separated by about two kilometers from Village Rudgaon and intercepted by a river. The enquiry report also contains information that it would be difticult to commute between Village Rudgaon and Sakripar during rainy season. It also refers to certain statements made by public representatives mat during llood, school is mostly closed. In the enquiry report, it has been concluded that in the absence of proper information, selech'on committee recommended the name of the petitioner for appointment on the post of Teacher without keeping in view the natural obstruction. and therefore. the complaint was found hue and the complainant was found to be most suitable candidate for appointment. (1 0) ln the considered opinion of this Court, the entire exercise is wholly illegal and unsustainable in the eye of law. Firstly. the basis for findings recorded in the enquiry, arestatements of some public representatives and statement of some more personsastating’ that comptainant was resident of Village sakripar. Secondly, without recording a clear nnding and ignoring material documen$ and certihcatee. it has been assumed that Sakripar andRudgaon are not belonging to one area. As such, hndingzrecorded by the enquiry officer in this regard are quite vague. It is apparent that’the-authority, who has prepared the enquiry report, avoided to record a specihc tinding. Whatever material has been placed on record. on that basis. it is found that Sakripar has not been separately recorded as a revenue village but is only a ward of Village Rudgaon. As against \ a 3"V7 :— W”# n. h 5'? . dwumnhw evidence placed on record by me petitioner showing him as resident of village Rudgaon. it has been assumed. without any materiel that petitioner is not resident of Sakripar. This being lhe situation. it could not be said that petitionerwas not eligible for appointment. At any rate, it was a seriously debatable issue. It was thus obligatory on he part of the respondents to disclose to the petitioner the material which was collected behind his back in the enquiry. This was not done. Even the enquiry report was not supplied to drepehtroner Moreover from the nnding which have been recorded in the enquiry report, it is found that in the garb of examining complaint as to whether the petitioner was a resident of Sakripar, reassessment of suitability has taken place. The material available on reeord shows mat the petitioner was eligible for appointment. Once the selection committee considered me suitability of the petmoner it was not open for die respondens to enter into a fresh exercise of reassessment of suinbility and the respondenS were estopped from doing so. Thus the impugned order of termination is found to be in violation of principles of natural jusu'ce, otherwise arbitrary, unreasonable and therefore liable to be set aside. (11) Consequently, impugned order Annexure A-‘l dated 18-02-1993 is held illegal and is accordingly quashed. Petition is accordingly allowed. So far as . back wages are concemed,‘ respective Dy. Director shall hold an inquiry with regard to gainful employment of me petitioner. The said inquiry shall be completed within a period of‘t‘months form the date of receipt of copy of this order. lf it is found that the petitioner was no gainfully employed during the period he remained out of employment. he shall be entitled to back wages also. There shall be no ordefs as to cost. f“ Sd/— ‘ Manindra Mohan Shrivastava Judge a}