QERMSLE EEMM ‘ 9b @ €,§§Hc(o/ ARH AT BILASPUR C.G. IN THE HON’BLE HIGH COURT OF CHHATTISG WRIT PETmON s No.‘%9"1/ \ IN THE MATTER OF ARTICLE 226 OF THE CONSTITUTION OF INDIA ; ‘AND PETITIONER IN THE MATTER OF CHHATTISGARH TRIBAL WELFARE SUB-ORDINATE (CLASS III - NON~MINISTERIAL) RECRUITMENT RULES 1970 ; AND IN THE MATTER OF CHHATTISGARH PUBLIC SERVICES (PROMOTION RULES 2003) ; AND BETWEEN : “ Girendra Kumar Sahu, son of Shri MR. Sahu, aged about 49 years, Upper Division Teacher, Higher Secondary School, Manpur, District Rajnandgaon, resident of BDO 'Qr. No. 12, Manpur, District Rajnandgaon, Chhattisgarh RESPONDENTS I Amrito Das, Advocate VERSUS / 1. State of Chhattisgarh, through the Secretary, Scheduled Caste & Scheduled Tribe Development Department, Mantralaya, D.K.S. Bhawan, Raipur, Chhattisgarh 2. Commissioner / Director Tribal Welfare Department Government of Chhattisgarh, Mantralaya, D.K.St Bhawan, Raipur, Chhattisgarh 3. Additional Director, Scheduled Caste. Scheduled Tribe, {, I2M3’ \ @ 0\ Backward Class and Minority Community Welfare Department, Government of Chhattisgarh, Raipur, Chhattisgarh Collector, District Rajnandgaon, Chhattisgarh /4. /5. Shri Anil Kumar Pandre, son of not known, Upper Division Teacher Middle School, Khadgaon, District Rajnandgaon, Chhattisgarh WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT IN THE NATURE OF MANDAMUS AND FOR ISSUANCE OF OTHER SUITABLE WRITS, DIRECTION OR DIRECTIONS, ORDER OR ORDERS Assistant Commissioner, Department of Tribal Development, Rajnandgaon, Chhattisgarh ,Lwx §O\ H IGH COURT OF CHHATI'ISGARH T BILASPUR I WRIT PETmON (s1 No. 7658 OF 2010 Petitioner Rajesh Kumar Shukla Versus Resgndents State of Chhattisgarh & Others WRIT PETITION (S! No. 371 QF 2011 Petitioner Purushottam Lat Dewangan Versys State of Chhattisgarh & Others WRIT PETITION (SI Na. 372 OF 2011 Petitioner t ’ Girendra Kumar Sahu Resgndents State of Chhattisgarh & Others Versus Present :- Shn' Amrito Das, AdVOcate for'the petitidners. Shri Sushi! Dubey, Govemment Advocate for the State. ORDER {ORALI (Passed on 25‘“ day of January, 201 1) 1. W.P.(S) Nos. 7658/2010, 371/2011 & 372/2011,- Involved common facts and a common question of law and, as such, they are being considered and disposed of by this common order. 2. Challenge in‘ these petitions is to the show cause notice dated . 29.11.2010 (Annexure P-1), which was issued to the petitioners ’ after having taken decision on 28.1 1 .2005 to cancel promotion of the petitioners to the post of Upper Division Teacher. é promoted to the post of Upper Division Teacher and the petitioners were denied the benefn of promotion though they were similarly placed. One of the petitionersflled a writ petition being W.P.No. 599/2003 (Annexure P-7). This Court by order dated 26.4.2003, directed the petitioner to make a detaiied representation to the competent authority to decide the same in accordance with law. it was further observed that if any adverse order passed and the petitioner thereby aggrieved, he may fiie a fresh petition chailenging the order. Pursuant thereto the petitioners were promoted to the post of Upper Division Teacher by order dated 2.6.2003 & 18.6.2003, which was confirmed by memo‘dated 4.3.2004 (Annexure P-1 0). Thereafter, notice was issued to the petitioners on 30.12.2005 (Annexure P-13) calling upon the petitioners to cancel the promotion order dated 2.6.2003 & 18.6.2003. Being aggrieved, the petitioners approached this Court again in W.P.No.505l2006 434/2006 & 435/2006 respectively. This Court having considered all the aspects of the matter, granted interim ordeir' in favour of the petitioners on 6.2.2006 (Annexure P-14). The matter was thereafter disposed of on 22.4.2010 (Annexure P-15), holding that since the order of promotion was not passed and there was no cause of action, the petition was dismissed as premature. However, liberty was reserved to the State respondents to issue fresh show cause notice to the petitioners, if so advised. Pursuant thereto, the impugned show cause notice was issued. 3 KOQ Learned counsel appearing for the petitioners submits that the impugned show cause notice has been issued after having taken the decision to ‘cancel the promotion of the petitioners to the higher post. Thus, it amounts to post decisionai notice. The petitioners impugned the earlier memo dated 30.12.2005 (Annexure P43). This Court by order dated 22.04.2010 in W.P. No.437/2oos (Shekhuram Sahu v. State of ohhattisgam & Others) held that memo dated 30.12.2005 was not a proper show cause notice, as the contention of the petitioner therein, was that a notice was post decision notice. Accordingiy, the impugned memo was quashed. However, liberty was reserved to the State respondents to issue fresh show cause notice, if so adVised. Pursuant to the liberty granted in W.P.No.425/2006 (Hirelal Kosare v. State of Chhattisgarh & Others) (supra) and other, connected matters, the State respondents have issued identical show cause notice on 29.11.2010 holding that-the order of promotion dated 2.6.2003 & 18.6.2003 were quashed by order dated 28.11.2005. Thereafter, again a show cause notice was issued in the same fashion after taking adverse decision against the petitioners. The said practice has been deprecated in the earlier petition. Thus, the impugned show cause notice is contrary to the well settled principles of law. 10. The Supreme Court in Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-I & Another’ held that even in absence of express provision for affording an opportunity of pre-decisional hearing, the principles of natural justice is to be 1 (2008) 14 SCC 151 foHowed before taking a decision. it was further observed as unden “31. We are also unable to persuade ourselves to agree with the proposition canvassed by leamed counsel for the Revenue that since a post—decisional healing in terms of sub-section (3) of Section 1‘42 is contemplated, the requirement of natural justice is fully met. Apart from the fact that ordinarily a post- decisional hearing is no substitute for pre- decisional hearing, even from the language of the said provision it is plain that the opportunity of being heard is only in respect of the material gathered on the basis of the audit report submitted under sub-sechon (2-A) and not on the validity of the origins! order directing the special audit. it is well settled that the principles audi alteram pertem can‘ be excluded only when a statute contemplates a post—decisional hearing amounting to a full review of the original order on merit, which, as explained above, is not the case here”, 11. In the case on hand, there is no statutory provision to provide post-decisionai hearing, which necessitates review of the order in full. Appiying the weii settied principies of law to the facts of the case where admittedly decision to quash the eariier order of promotion was taken before issue of show cause notice. Thus, show cause notice is vitiated. 12. In view of foregoing reasons, the impugned notice dated 29.11.2010 is quashed. Accordingly, the writ petitions are allowed. No order asto costs. Sd/-’ Satish K. Agnihotri Judge Ashok