--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION NO. 2604 / 2011 ANIL KUMAR S/O DAMODAR PRASAD Vs. THE STATE OF MP & OTHERS WRIT PETITITION NO. 2311 / 2011 LATA ASOLIA W/O NAROTTAM SINGH Vs. THE STATE OF MP & OTHERS WRIT PETITITION NO. 2339 / 2011 PARVAT SINGH S/O DUDA SINGH Vs. THE STATE OF MP & OTHERS WRIT PETITITION NO. 2340 / 2011 SHOBHARAM S/O GUMAN SINGH Vs. THE STATE OF MP & OTHERS WRIT PETITITION NO. 2486 / 2011 LALIT S/O SUJANMAL Vs. THE STATE OF MP & OTHERS A N D WRIT PETITITION NO. 2605 / 2011 PRAMOD KUMAR S/O MOTI SINGH Vs. THE STATE OF MP & OTHERS --- 2 --- * * * * * O R D E R ( 3/5/2011) Regard being had to the similitude in the controversy involved in the matter, the above cases were heard together and a common order is being passed. The facts of WP No. 2604/2011 are narrated as under : The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 4/3/11 passed by the Chief Executive Officer, Nagar Panchayat, Petlawad, Distt. Jhabua, terminating the petitioner from service. The contention of the petitioner is that an advertisement was issued in the year 1998 inviting applications for the post of Shiksha Karmi, (Grade I, II and III) and the petitioner was selected in the process of selection. The petitioner has further stated that an appointment order was issued on 10/8/98 and since then the petitioner is serving regularly under the Nagar Panchayat, Petlawad. The petitioner's grievance is that by an order dt. 4/3/11 his services have been put to an end without granting any opportunity of hearing to the petitioner and therefore the action of the respondents is violative of principles of natural justice and fair play hence the impugned order --- 3 --- deserves to be quashed. Learned counsel for the petitioner has placed reliance upon a judgment delivered by the apex court in the case of Shrawan Kumar Jha Vs. State of Bihar reported in (AIR 1991 SC 309) wherein Hon'ble the Supreme Court has held that an opportunity of hearing is necessary in case service of an employee are being put to an end. Learned counsel for the petitioner has also placed reliance upon a judgment delivered in the case of Union of India & ors., Vs. Bikash Kuanar (2006) 8 SCC 192 wherein again the apex court has considered the issue in respect of irregularities committed in the process of selection and the apex court in the aforesaid case has held that in absence of allegation of favouritism or bias the selection cannot be presumed to have been done in a mechanical manner. A reply has been filed in the matter and the stand of the respondent Nagar Panchayat is that a fact finding enquiry was conducted and after conducting a fact finding enquiry the services of the petitioner has been put to an end. The report of the fact finding enquiry was submitted vide letter dt. 19/10/10 to the Commissioner, Urban Administration, Bhopal and based upon the report the impugned order of termination has been passed. However, the reply does not reveal that any show cause --- 4 --- notice of any kind was issued at any point of time before passing the impugned order. Learned counsel for the respondents has placed reliance upon a judgment delivered by the apex court in the case of Aligarh Muslim University and others v. Mansoor Ali Khan reported in (AIR 2000 SC 2783) and his contention is that no purpose is going to be served by granting an opportunity of hearing to the petitioner as the net result is going to be the same and therefore the order passed in violation of principles of natural justice and fair play does not warrant any interference. He has prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. In the present case, an advertisement was issued inviting applications for the post of Shikshakarmi on 2/6/98 and the petitioner did submit an application for appointment to the post of Shikshakarmi. He was selected through a process of selection and an order was issued on 10/8/98 appointing him as a Shikshakarmi. The petitioner is continuing since 1998 in service. Not only this the petitioner has been regularised on 12/10/2001 under the provisions of MP Nagar Palika Shikshakarmi Bharti --- 5 --- Tatha Sewa Shart Niyam, 1998 and thereafter he has been further redesignated as a Teacher by an order dt. 22/2/08. The petitioner is at present working as a Teacher in the pay scale of Rs.4000 – 6500. The respondents on the basis of some complaint have conducted a fact finding enquiry and the impugned order has been passed on 4/3/11. It is an admitted fact that no opportunity of any kind was granted to the petitioner while conducting a fact finding enquiry and while passing an order of termination. Learned counsel for the respondent Nagar Panchayat has vehemently argued before this court that the appointment of the petitioner was contrary to the recruitment rules and no purpose is going to be served by granting an opportunity of hearing to the petitioner and in the light of the judgment delivered by the apex court in the case of Aligarh Muslim University and others v. Mansoor Ali Khan (supra). This Court has carefully gone through the so-called exparte enquiry report and there is a reference in the enquiry report in respect of the petitioner. The enquiry report reveals that the petitioner has received 69.06% marks in the process of selection and the complainant has received 63.89% marks meaning thereby in the enquiry report itself it has been held that the --- 6 --- petitioner has received more marks than the person who has filed the complaint before the authorities and inspite of this, on the basis of enquiry report the service of the petitioner have been put to an end and therefore as the respondents have not taken into account their own enquiry report and the exercise has been done in a mechanical manner, the judgment relied upon by the learned counsel for the respondent is of no help to the respondents. It is really unfortunate that the so-called complaint against the appointments were received by the authorities in the year 1998 itself and action has been taken against the petitioner in the year 2011. The complaint dt. 11/1/98 was forwarded by the Lokayukt establishment to the Nagar Panchayat, Petlawad in the year 2000 and after a decade the respondents have concluded the enquiry and have issued the impugned order on 4/3/11. The apex court in the case of Shrawan Kumar Jha Vs. State of Bihar (supra) in para 3 has held as under : 3. By an order dated November 2, 1988, the Deputy Development Commissioner cancelled the appointments of the appellants. Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents has contended that the appointments have been cancelled because the District Superintendent of Education had no authority to make the --- 7 --- appointments, It was a device of by- passing the reservations and that the conditions which are part of the appointment order were not complied with. Mr. U. R. Lalit and Mr. A. K. Ganguli, learned Senior Advocates, appearing for the appellants have controverted these allegations and have dated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground. As suggested by the learned Solicitor General, we direct that the secretary (Education), Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined their schools and worked, they shall be entitled to their salary for such period. --- 8 --- Keeping in view the judgment delivered by the apex court as no opportunity of hearing was granted to the petitioner nor the teachers were permitted to participate in the so-called departmental enquiry the entire enquiry conducted by the respondents is quashed and the consequential order of termination based upon the so-called enquiry report dt. 4/3/11 also quashed. However, a liberty is granted to the respondents to conduct a fresh enquiry in case they so desire and the petitioner as well as other identically placed persons shall also be permitted to participate in the enquiry. The respondents thereafter shall be free to pass necessary orders after issuing a proper show cause notice and after granting an opportunity to the petitioner to file a reply to the show cause notice. The respondents after receiving the reply of the petitioner shall be free to pass an appropriate order in accordance with law. In the present case, as this court has held the action of the respondents to be bad in law and the order of termination has been quashed, which was passed after more than a decade of the --- 9 --- petitioner's continuance in service, the petitioner shall be entitled for all consequential benefits including backwages. This petition as also the other identical connected petitions are allowed. No order as to costs. (S. C. SHARMA) J U D G E KR