Tikeshwar Prasad vs State Of Chhattisgarh

The present petition under Article 226 of the Constitution of India has been preferred by the petitioners against the cancellation of the appointment order dated 27.09.2012 (Annexure-P/1) passed by the respondent No.3, whereby the services of the petitioners, who were appointed on the posts of Swachhkarta/Paricharak Sah Chowkidar, have been cancelled.

Brief facts of the case are that an advertisement was issued on 29.02.2012 by the respondent No.3 for filling up the post of Swachhkarta/Paricharak Sah Chowkidar but subsequently on 09.05.2012 the same was amended with a condition that the written examination would be conducted for appointment on the aforesaid post. The petitioners appeared in the written examination and got selected vide merit list (Annexure-P/4), total 42 candidates and were given joining leters. The respondent No.6 also appeared in the exam but could not succeed, as a result of which he made a complaint alleging irregularties in the selection procedure. Thereafter the Collector, Raigarh issued a letter to the Deputy Director, Veterinary Services, upon which the detailed report of recruitment process was submitted by the Deputy Director to the Collector. Thereafter show cause notice was issued based on the enquiry conducted by the Collector, which was challenged by the petitioners way of writ petition bearing WPS No.4313/2012, but the same was dismissed vide order dated 26.09.2012 and on the same day i.e. 26.09.2012 after receiving the replies of the petitioners allegedly taken forcibly, their services have been cancelled. Therefore, the present petition has been preferred by the petitioners.

The reliefs sought by the petitioner are as under:-

“10.1 that, this Hon’ble Court may kindly be pleased to quash the impugned order dated 27-09-2012 (Annexure P-1)

10.2 that, any other relief, which this Hon’ble Court may deem fit and proper, may also be passed in favour of the petitioner together with cost of the petition.”

Learned counsel for the petitioner submits that the impugned order is bad, illegal and contrary to the provisions of law. Till 26-09-2012, show cause notice was not served upon several petitioners and on the same day notices were served and replies were forcibly taken on the same day. The petitioners are not aware of the enquiry conducted behind their back. Even after demand through reply to show cause notice, no documents were supplied to the petitioners. The petitioners’ right to hold the post has been accrued therefore they cannot be removed from their services without affording opportunity of hearing. The respondent authorities have done mass cancellation which is unfair practice. Issuance of show cause notice is mere formality and is an eye wash. Therefore, the impugned order dated 27.09.2012 is liable to be set aside. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matters of Kranti Associates Private Limited and another vs Masood Ahmed Khan and others (2010) 9 SCC 496, Rashmi Metaliks Ltd. Vs Kolkata Metropolitan Development Authority 2013 CJ (SC) 2224, Smt. Archana Pandey and others vs State of U.P. and others 2016 CJ (All) 1108 rendered by the High Court of Allahabad and in the matter of Ramakant Roy vs The State of Jharkhand and others 2021 CJ (Jhar) 6 rendered by the High Court of Jharkhand (Ranchi Bench).

Learned counsel for the respondent Nos.1 to 5 submits that before passing the impugned order, show cause notices were issued to the petitioners. After selection of petitioners a complaint was made and enquiry was conducted and some irregularities were found to have been committed in the selection procedure. It is also found that some candidates answered less questions but they got higher marks e.g. the candidates got 90% marks, whereas they answered only 88/86 answers to the questions. He further submits that the advertisement was issued for 32 posts but against these 32 posts, 44 candidates have been appointed. Since there was lack of transparency, non following of the reservation policy of the State Government and various other glaring irregularities were also found by the Committee, therefore, the select list was cancelled. Bare perusal of detailed report (Annexure-R/1) would reveal that there were gross manipulations and lots of irregularities were done, as such the previous select list has rightly been cancelled. Therefore, the petition has no merit and the same may kindly be dismissed.

Learned counsel for the respondent No.6 submits that as per advertisement, vacancy of 32 posts was there but the Department has filled up 44 posts without readvertising the posts in a haste manner and ignoring the instructions issued by the State Government. The criteria fixed for the post was minimum Class 8th which was later on amended by the Government vide memo dated 16.04.2012. The selection of the petitioners was made in unfair manner including manipulation in the answer sheets and relatives of the employees were selected and for which the respondent No.3 was also placed under suspension vide order dated 31.10.2012 (Annexure-R-6/3). He further submits that the respondent No.6 had made complaint before the authorities to make a detailed enquiry into the matter and ultimately the Collector, Raigarh ordered for enquiry into the matter and vide letter dated 14.09.2012 (Annexure-R-6/4), the Additional Collector, Raigarh was appointed as Enquiry Officer to look into the matter and he submitted enquiry report to the Collector. After detailed enqury, FIR was lodged against the selection committee vide Crime No.926/2012 (Annexure-R-6/5) under Sections 420, 467, 471/34 of IPC. The Collector issued show cause notice to the petitioners and after the detailed enquiry, the selection committee was found in non following of the reservation of woman candidates including disabled persons of Scheduled Caste Category as well as other irregularities, therefore, the whole selection process was struck down and the impugned order has rightly been passed. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of State of West Bengal and others vs Sankar Ghosh (2014) 3 SCC 610.

Heard learned counsel for the parties and perused the material available on record.

The documents filed by the both the parties postulate that after selection of petitioners, respondent No.6 filed a complaint and thereafter the Collector, Raigarh appointed the Enquiry Officer into the matter and on the basis of enquiry report, show cause notice was issued to candidates, against which petitioners filed WPS No.4313/2012 (Annexure-P/16) which was dismissed by this Court vide order dated 26.09.2012 and on the very next date i.e. 27.09.2012, the select list was cancelled by the respondent authorities vide order (Annexure-P/1), which again resulted into filing of the present petition. This Court vide order dated 03.10.2012 stayed the impugned order and the petitioners were allowed to continue in services till final disposal of this petition. Perusal of the enquiry report (Annexure-R/1) shows that various irregularities/manipulations were found by the Enquiry Officer. It was also found that manipulations were done by the Evaluators to give some extra marks to the candidates. The respondent No.6 also filed copy of FIR, which was registered against the accused persons who were found involved in commission of irregularities/manipulations in the answer sheets, but the orders of learned Sessions Court, Raigarh produced by the petitioners shows that all the accused persons i.e. Dr. P.P. Shrivastava, Dr. S.D. Dwivedi, Dr. Shatrughan Singh, Dr. Hitendra Kumar Soni and Dr. Smt. Tripti Singh were discharged by the Session Court of the offence alleged against them.

The Hon’ble Apex Court in the matter of Sankar Ghosh (supra) held in para 19 as under:-

“19. Regulation 4 of Chapter 19 of the Police Regulations of Calcutta, 1968, which is applicable to the case in hand, specifically provides that acquittal or discharge in a criminal proceeding shall not be a bar to award punishment in a departmental proceeding in respect of the same cause or matter. The said Regulation is extracted below for easy reference :

“4. Discharge or acquittal not a bar to departmental punishment. – An order of discharge or acquittal of a Police Officer shall not be a bar to the award of departmental punishment to that officer in respect of the same cause or matter.”

The above rule indicates that even if there is identity of charges levelled against the respondent before the Criminal Court as well as before the Enquiry Officer, an order of discharge or acquittal of a police officer by a Criminal Court shall not be a bar to the award of the departmental punishment. The Tribunal as well as the High Court have not considered the above-mentioned provision and have committed a mistake in holding that since the respondent was acquitted by a Criminal Court of the same charges, reinstatement was automatic.”

The Hon’ble Apex Court in the matter of Rashmi Metaliks Ltd (supra) held in para 8 as under:-

“8. xxxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx

The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p.18):

“Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow order.”

In the case in hand, initially the advertisement for filling up the posts of Swachhkarta/Paricharak Sah Chowkidar was issued, which were to be filled up through direct recruitment, but subsequently corrigendum was issued and the aforesaid posts were decided to be filled up through written examinations. The petitioners appeared in the examinations and declared successful. The respondent No.6 also appeared in the said examination but could not succeed, as a result of which he filed complaint alleging irregularities/ manipulations in the answer sheets, upon which enquriy was directed to be initiated by the Collector, Raigarh and the Enquiry Officer was also appointed. After due enquiry, gross irregularities and manipulations in the answer sheets were found, as a result of which the show cause notices were issued to the petitioners, against which the petitioners preferred WPS No.4313/2012 (Annexure-P/16) before this Court, which was dismissed vide order dated 26.09.2012, however, the respondents authorities were directed to provide proper opportunity of hearing to the petitioners before passing the order. On the very next date i.e. 27.09.2012, the select list of the petitioners was cancelled by the respondent authorities vide order (Annexure-P/1), which again resulted into filing of the present petition. This Court vide order dated 03.10.2012 stayed the impugned order and the petitioners were allowed to continue in services till final disposal of this petition.

The petitioners in order to substantiate their stand have filed copy of orders passed by the Session Court discharging the Evaluators/examinors of the offence against them, who evaulated the answer sheets of the petitioners, and have taken a stand in their defence that no irregularities or manipulations were done in the answer sheets and justified their selection on the aforesaid post. True it is that some irregularities/manipulations were found by the Enquiry Officer in the selection of the petitioners on the aforesaid post and there appears lack of transparency and non following of reservation policy, more particularly against the 32 advertised posts, 44 appointments were done and the mode of selection was also changed subsequently by way of amended advertisement, but despite the same, the whole select list should not have been cancelled and instead, the candidate, whose selection would have been found to be invalid and illegal, only his/her selection should have been cancelled individually and there might be some candidates who would have been selected genuinely.

Accordingly, the impugned order dated 27.09.2012 is liable to be and is hereby set aside. However, keeping in mind the irregularities done in the selection process of the petitioners and other selected candidates as well as the conduct of the selection committee, the respondent authorities are directed to issue fresh show cause notice to the petitioners and conduct fresh enquiry into the matter and if after the enquiry, the selection of any of the petitioner or any other selected employee is found illegal and invalid, he or she be removed from service.

The writ petition is allowed with the aforesaid direction. No order as to cost (s).