Nita Alsare vs State Of Chhattisgarh

The petitioner has challenged the order dated 30.10.2018 (Annexure P/1) passed by the respondent No.1, by which the promotion of the petitioner on the post of Naib Tahsildar from Assistant Grade-II has been cancelled and he was again posted as Assistant Grade-II in the District Office, Kabirdham.

Facts of the case, in short, are that an advertisement was issued on 04.03.2014 for promotion on the post of Naib Tahsildar which was to be filled up from Graduate Patwari, Revenue Inspector and other Clerical staff posted in the sub-ordinate office of Commissioner Land Revenue, Divisional Commissioner, Rajsava Mandal, Collector Office and its sub-ordinate offices. The petitioner belonged to Scheduled Caste Category. As per the advertisement, the date of submission of form was from 15.03.2014 to 24.03.2014. There were total 57 posts laying vacant, out of which 28 posts for Revenue Inspector/Patwari, 12 posts for unreserved, 4 posts for Scheduled Caste, 9 posts for Scheduled Tribes and 3 posts for Other Back Ward Class and 29 posts was reserved for clerical grade employee, out of which 12 posts were reserved for unreserved, 4 posts for Scheduled Caste, 9 posts for Scheduled Tribes and 4 posts for Other Back Ward Class. For qualifying the examination, candidates should have secured 50% marks which is compulsory in each question papers. The advertisement further provides selection process for appointment of Naib Tahsildar and paragraphs 5 to 7 of the advertisement are extracted below:-

The petitioner participated in the selection process and obtained 40 marks in first paper and 45.918 marks in second paper. In pursuance of selection process dated 22.03.2016, the petitioner was appointed as Naib Tahsildar and posted in district Mahasamund. Subsequently, one Smt. Manulata Sharma has filed the Writ Petition (S) No. 3951 of 2018 wherein this Court vide order dated 28.05.2018 had directed which is as under:-

“ In view of this, the rejection of representation dated 16.05.2018 is set aside. The petitioner is directed to file a detailed representation before the Respondent i.e. Secretary, Department of Revenue & Disaster Management with all the relevant documents and in such eventuality, the department shall reconsider the representation keeping in view the fact that other candidates were given the benefit by relaxation of the marks over and above the circulars so existing. The demand or legitimate expectation of the petitioner cannot be shelved by non-speaking order, therefore, it is directed that if the petitioner makes a representation within a period of 30 days, the department shall consider within a further period of 45 days and decide the same objectively without being influenced by the earlier rejection of the representation. It is made clear the orders have been passed particularly in facts of this case and would not be considered as a precedent for any other likewise issue”.

In pursuance of direction issued by this Court, the State has examined the case of Smt. Manjulata Sharma and passed the impugned order by cancelling the appointment of the petitioner and she has been reverted back to the post of Assistant Grade-II as her appointment was contrary to the Rules. This order has been assailed by the petitioner before this Court. This Court vide order dated 15.11.2018 has considered the submission and has granted interim order in her favour by directing that she is still discharging her duties of Naib Tahsildar, status quo as it exists today so far as posting of the petitioner is concerned, be maintained.

Learned counsel for the petitioner would submit that as per circular dated 15.06.1995, 10% relaxation in cutoff mark has to be extended to her, therefore, the petitioner is eligible to be considered for appointment, as such issuance of order impugned deserves to be set aside by this Court. He would further submit that the case of Smt. Manjulata Sharma is entirely different and without considering the case of the petitioner the appointment of the petitioner to the post of Naib Tahsildar has been cancelled.

On the other hand, learned State counsel has filed his return contending that in pursuance of detailed representation submitted by Smt. Manjulata Sharma on 15.06.2018, wherein certain allegations have been levelled against the petitioner, therefore, notice was issued to the petitioner on 26.10.2018 with a direction to appear on 29.10.2018 before the Department. It has been further contended that in pursuance of the notice issued to the petitioner, she appeared before the authorities as reflected from the notice sheet, copy of note sheet dated 29.10.2018 is filed with the return. He would further submit that the opportunity of hearing was given to the petitioner and further considering the case of the petitioner, the respondents had issued order dated 30.10.2018 whereby it has been held that the petitioner was not eligible for appointment on the post of Naib Tahsildar, as the petitioner has obtained 40 marks in the first question paper and 45.918 marks in the second paper whereas after giving relaxation as per the circular dated 15.06.1995, the cut off marks for the reserved category candidates is 45 marks for each papers hence, in light of the same, a decision was taken that the appointment of the petitioner on the post of Naib Tahsildar is illegal and the order was communicated to the petitioner on 17.11.2018.

State counsel has also filed an application for vacating the stay order passed by this Court on 15.11.2018 and also filed an application for urgent hearing. Considering the facts, the matter was listed for hearing before this Court on 01.08.2022 and argument was heard finally and the case was reserved for order.

I have heard counsel for the parties and perused the record.

Before adverting to the factual matrix of the case, this Court has to examine the Recruitment Rules which govern the fields. State of Madhya Pradesh in exercise of power conferred under Article 309 of the Constitution of India has framed Madhya Pradesh Kanistha (Junior) Administrative Service Rules on 29th September, 1980 and as per Schedule-5 of the Rule 1980 and scheme for filling up of the posts of Naib Tahsildar through limited competitive examination have been

According to the Schedule 5 of the Rules sub rule 7 of Rule 2, the list will be prepared for those candidates who have secured 50% or more marks in both the papers and clause 7 of the Rules is extracted below:-

Learned counsel for the petitioner would submit that the petitioner should have been given relaxation as per the circular issued by the Government in the year 1995, as such continuation of the petitioner on the post of Naib Tahsilar is legal and justified.

So far as the relaxation marks is concerned, while passing the impugned order dated 30.10.2018 Secretary, Department of Revenue and Disaster Management has observed in its order as under:-

From bare perusal of the Scheme it is evident that 50% marks or more marks have to be acquired by the candidate then his name will be included in the list. The petitioner belonged to S.T. category, the requisite cut off marks for S.T. category is 45% of the marks whereas the petitioner has secured 40% of marks in the first paper and in second paper she has secured 45.98% of marks, therefore, she has not cleared one paper, as such she was not eligible for appointment and inadvertently she was given appointment on the post of Naib Tahsildar. The State has taken specific stand that petitioner is not able to get minimum qualifying marks in one paper even after getting relaxation as per the circular of erstwhile State of Madhya Pradesh dated 15.06.1995. Thus her appointment on the post of Naib Tahsildar is not in accordance with the law and same has not been rebutted by the petitioner by filing the rejoinder, as such it is quite vivid that petitioner is not eligible to be appointed on the post of Naib Tahsildar still she has been appointed which has rightly been corrected by reverting to her original post of Assistant Grade-II.

The record would further show that the State has examined the case of Smt. Manjulata Sharma in terms of the order passed by this Court and has assigned the reason while rejecting the claim of the petitioner. Considering the fact that the petitioner was not eligible to be appointed on the post of Naib Tahsildar the impugned order dated 30.10.2018 has been issued. Thus, the impugned order has rightly been passed by the respondent No. 1 and respondent authority has not committed any error or illegality which warrants inference by this Court.

Further contention raised by the petitioner that no opportunity of hearing while passing the impugned order is incorrect submission of fact as in pursuance of notice dated 26.10.2018 (Annexure P/1) which has been issued for appearance of the petitioner on 29.10.2018 the petitioner has appeared before the Secretary as reflected from the order sheet dated 29.10.2018 as such this contention also deserves to be rejected and accordingly it is rejected.

In view of the above analysis, this Court finds that the impugned order which is being challenged by the petitioner does not suffer from any illegality. Accordingly, this petition is dismissed being devoid of merits.

Interim order passed by this Court on 15.11.2018 stands vacated.