Omprakash Singh Maravi vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.

Heard learned counsel for the parties.

Challenge in this petition is to the appointment order dated 05.11.2007 (Annexure-P/2), issued by the respondent authorities, in favour of the respondent No. 3 on the post of Sub Engineer (Civil) and to initiate fresh recruitment process in accordance with the advertisement. Learned counsel appearing for the petitioner submits that on 08.06.2005 (Annexure-P/1) the respondent authorities issued an advertisement for selection on the post of Sub Engineer. Pursuant to the said advertisement, the petitioner, respondent No. 3 and several other candidates applied for the said post. According to the said advertisement, who were working in Government/Semi-Government Institutions, may apply only after obtaining no objection certificate from the concerned authority. Subsequently, after completing the selection process, the respondent No. 3 was appointed on the post of Sub Engineer (Civil) by order dated 05.11.2007 (Annexure-P/2).

According to the learned counsel appearing for the petitioner, in fact, before making an application, pursuant to the advertisement dated 08.06.2005 (Annexure-P/1), the respondent No. 3 was working as Assistant Engineer under the Pradhan Mantri Gramin Sadak Yojna (for short "the PMGSY") and without obtaining the no objection certificate, he applied for the post and got appointment. After receipt of the appointment order dated 05.11.2007 (Annexure-P/2), the respondent No. 3 obtained no objection certificate on 28.11.2007 (Annexure-P/3) from the PMGSY and executed affidavit on 29.11.2007 (Annexure-P/4). Later on, he submitted the same before the respondent department. The respondent joined on the post of Sub Engineer on 03.12.2007, as is evident from the communication dated 14.12.2007 (Annexure-P/5). Even the respondent No. 3 tendered his resignation in the department of the PMGSY on 27.11.2007, which was accepted by the Department of Panchayat and Rural Development on 12.02.2008 (Annexure-P/6).

Learned counsel also submits that from the aforementioned facts, it is manifest that the respondent authorities without following the due process of law and without considering the fact that the respondent No. 3 has not followed the terms of the advertisement properly, passed the appointment order. By raising all the grievances, the petitioner sent a legal notice to the respondent authorities on 24.10.2008 (Annexure-P/7), which has been replied by the respondent authorities on 05.12.2008 (Annexure-P/8) without giving sufficient and cogent reasons. From the information obtained by the petitioner under the Right to Information Act, 2005, it is evident that in the select list, name of the respondent No. 3 was at serial No. 11, whereas the name of the petitioner was at serial No. 16. Hence, this petition for cancellation of appointment of the respondent No. 3 and for initiating fresh selection process for the post of Sub Engineer (Civil).

Though the State has submitted its response to the petition, but has not disputed the aforesaid allegations leveled by the petitioner against the respondent authorities as well as against the respondent No. 3 except that the respondent No. 3 obtained more marks than the petitioner. The State has further contended that since the respondent No. 3 has not stated anything about his previous employment, the authorities have treated him as a fresh candidate and, as such, they have not violated the terms and conditions of the selection process.

On going through the record, it is manifest that in clause 6 of the

advertisement i.e. 8.6.2005, the respondent No. 3 was working in the PMGSY since 6.4.2005, as is evident from the certificate dated 28.11.2007 (Annexure-P/3). In spite of the above, the respondent No. 3 without obtaining no objection certificate from the employment, applied to the post of Sub Engineer and got appointment. Even the respondent No. 3 tendered resignation to the previous post on 27.11.2007 i.e. after obtaining appointment on the post of Sub Engineer on 5.11.2007. The respondent No. 3 ought to have informed about the previous employment status, which had admittedly not been done. Thus, the case of the respondent No. 3 falls within the category of suppressio veri and suggestio falsi. (See: Jitendra Kumar Thakur v. State of Chhattisgarh & Others WP (S) No. 1146 of 2012 (decided on 16.3.2012))

For the foregoing reasons, the appointment order dated 5.11.2007 (Annexure-P/2), passed in respect of the respondent No. 3, is quashed. The petitioner, if falls in the merit list, may be considered for his appointment on the post of Sub Engineer.

Before parting with the decision, it is necessary to observe that in such a cases, wherein illegality has been allowed by the officers for about 5 years, it would be just & proper for the State Government to take disciplinary action against the persons concerned. As a sequel, the writ petition is allowed to the above extent, leaving the parties to bear their own costs.