Smt. Shashiprabha Singh vs State Of Chhattisgarh And Ors
2021 Latest Caselaw 1531 Chatt

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                                                                 AFR
          HIGH COURT OF CHHATTISGARH AT BILASPUR
             Writ Petition (S) No. 3874 of 2010
  Ku. Kavita Pandey D/o Shri B.L. Pandey, Aged about
  23     years,   Shikshakarmi     Grade    III,   Govt.    Primary
  School     Ullur,   Distt.     Bijapur,    Chhattisgarh,      R/o
  Village         Bhopalpattanam,           Distt.         Bijapur,
  Chhattisgarh.

                                                   ­­­Petitioner

                           Versus

1. The State of Chhattisgarh, through the Secretary,
  Panchayat and Rural Development Department, D.K.S.
  Bhawan, Raipur, Chhattisgarh.

2. The Commissioner, Bastar Division, at Jagdalpur,
  Distt. Bastar, Chhattisgarh.

3. The      Collector,     Bijapur,          Distt.        Bijapur,
  Chhattisgarh.

4. Assistant Commissioner, Tribal Welfare Department,
  South Bastar, Bijapur, Chhattisgarh.

5. Sub Divisional Officer (Revenue), Bhopalpattanam,
  Distt. Bijapur, Chhattisgarh.

6. Chief     Executive     Officer,         Janpad     Panchayat
  Bhopalpattanam, Distt. Bijapur, Chhattisgarh.

7. Block     Education     Officer,         Development       Block
  Bhopalpattanam, Distt. Bijapur, Chhattisgarh.

                                              ­­­ Respondents

Writ Petition (S) No. 5694 of 2010 Smt. Shashiprabha Singh W/o Shri Shailendra Singh, Aged about 26 years, R/o Quarter No. 97, Surbhi Colony, Near S.P. Office, Dantewada, Chhattisgarh.

­­­Petitioner

Versus

1. The State of Chhattisgarh, through the Secretary, Department of Panchayat and Rural Development, D.K.S. Bhawan, Mantralaya, Raipur, Chhattisgarh.

2. Collector, Beejapur, Chhattisgarh.

3. Deputy Collector, Beejapur, Chhattisgarh.

4. Chief Executive Officer, Janpad Panchayat Bhopalpatnam, Distt. Beejapur, Chhattisgarh.

5. Jeevan Lal Deshlahre, Chief Executive Officer, Janpad Panchayat Bhopalpatnam, Distt. Beejapur, Chhattisgarh.

­­­ Respondents

For Petitioner in WPS No. 3874/2010 :­ Mr. A.K. Prasad, Advocate For Petitioner in WPS No. 5694/2010 :­ Mr. Varun Sharma, Advocate For State in both the petitions :­ Mr. Animesh Tiwari, Dy. A.G.

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board (Through Video Conferencing)

03/08/2021

1. Since common question of fact and law is involved

in both of these writ petitions, they have been

heard together and are being decided by this

common order.

2. Both the petitioners herein were appointed on the

post of Shiksha Karmi Grade III by Janpad

Panchayat, Bhopalpatnam vide order dated

31/05/2005 (Annexure P/3) under the provisions of

Chhattisgarh Panchayat Shiksha Karmi (Recruitment

and Conditions of Service) Rules, 1997 and they

completed the probation period of three years.

Thereafter, taking cognizance of the letter dated

03/10/2009 written by the C.E.O., Janpad

Panchayat, Bhopalpatnam, the Deputy Collector,

Bijapur initiated proceeding under Section 85 of

the Chhattisgarh Panchayat Raj Adhiniyam, 1993

(hereinafter 'Act of 1993') and issued notice to

the present two petitioners as well as eight other

persons. The petitioners appeared and sought time

to file reply but they were refused time and

ultimately, in a long drawn process, vide order

dated 19/12/2009 (Annexure P/10) final order was

passed by the Collector, Bijapur directing removal

of petitioners along with other persons from the

post of Shiksha Karmi Grade III under Section

85(1) of the Act of 1993 and a copy of that order

was sent to the State Government in compliance of

Section 85(2) of the Act of 1993, but it is the

case of the petitioners that thereafter nothing

has taken place.

3. In WPS No. 3874/2010, the petitioner has called in

question the order dated 12/07/2010 (Annexure P/1)

passed by the Commissioner, Bastar Division

dismissing the appeal preferred by the petitioner

against order dated 19/12/2009 (Annexure P/10)

passed by the Collector, Bijapur directing removal

of petitioner from the post of Shiksha Karmi Grade

III.

4. In WPS No. 5694/2010, the consequential order of

petitioner's termination was passed on 06/04/2010

(Annexure P/13) which was challenged by the

petitioner in WPS No. 2713/2010 wherein this Court

vide order dated 17/06/2010 (Annexure P/17)

remanded the matter to the C.E.O, Janpad

Panchayat, Bhopalpatnam, who thereafter passed the

impugned order dated 21/07/2010 (Annexure P/1)

confirming the order of termination, which has

been called in question by the petitioner.

5. In both the writ petitions, petitioners have

mainly challenged the legality, validity and

correctness of order dated 19/12/2009 (Annexure

P/10) passed by the Collector, Bijapur in exercise

of power conferred under Section 85(1) of the Act

of 1993 principally on the ground that there is

non­compliance of proviso to Section 85(2) of the

Act of 1993 and neither proceeding has been

initiated by the State Government or the Director,

Panchayat being the competent authority under

Section 85(2) of the Act of 1993 nor the

petitioners were afforded a reasonable opportunity

of hearing which they are entitled to under

proviso to Section 85(2) of the Act of 1993.

6. Return has been filed by the State justifying the

order dated 19/12/2009 (Annexure P/10) passed by

the Collector, Bijapur stating that petitioners

were not eligible to be appointed on the post of

Shiksha Karmi Grade III, therefore, invoking the

power conferred under Section 85(1) of the Act of

1993, petitioners' appointment has rightly been

cancelled/annulled which is absolutely in

accordance with law.

7. Mr. A.K. Prasad and Mr. Varun Sharma, learned

counsel for respective petitioners, would submit

that in order to comply with the proviso to

Section 85(2) of the Act of 1993, the Director,

Panchayat would be the competent authority to

confirm, set aside, revise or modify the order

passed by the prescribed authority under Section

85(1) of the Act of 1993, but neither the State

Government nor the Director, Panchayat has

initiated any such proceeding and moreover, no

reasonable opportunity of hearing was afforded to

the petitioners in accordance with the proviso to

Section 85(2) of the Act of 1993 while confirming

the order passed by the Collector, Bijapur under

Section 85(1) of the Act of 1993. The impugned

order dated 19/12/2009 (Annexure P/10) passed by

the Collector, Bijapur has automatically come to

an end and has lapsed, therefore, it could not

have been enforced by terminating the services of

the petitioners as the said proviso is mandatory

in nature and accordingly, it is liable to be set

aside. Mr. Varun Sharma, learned counsel for the

petitioner in WPS No. 5694/2010 would rely upon

the decision passed by this Court in the matter of

Sarpanch, Gram Panchayat v. State of Chhattisgarh

& Anr.1.

8. Mr. Animesh Tiwari, learned State counsel, would

support the impugned order and submit that since

petitioners were not qualified for the post of

Shiksha Karmi Grade III, therefore in accordance

with Section 85(1)(b) of the Act of 1993, they

have rightly been terminated from service by the

order passed by the Collector, Bijapur. He would

also submit that in WPS No. 3874/2010,

petitioner's order of termination has also been

confirmed by the Commissioner (Annexure P/1),

therefore no fault can be found in the order

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passed by the Collector (Annexure P/10) annulling

petitioners' appointment on the post of Shiksha

Karmi Grade III and accordingly, both the writ

petitions deserve to be dismissed.

9. I have heard learned counsel for the parties,

considered their rival submissions made herein­

above and went through the records with utmost

circumspection.

10. It is not in dispute that petitioners were

appointed on the post of Shiksha Karmi Grade III

by Janpad Panchayat, Bhopalpatnam vide order dated

31/05/2005 (Annexure P/3) and they have also

successfully completed the period of probation

under the relevant rules though no express order

of confirmation has been passed in their favour by

the appointing authority. On a request made by the

C.E.O., Janpad Panchayat, Bhopalpatnam vide letter

dated 03/10/2009, the Collector, Bijapur initiated

proceeding under Section 85(1) of the Act of 1993

and issued notices to the petitioners along with

eight other persons who are not before this Court.

The petitioners appeared and sought time to file

reply but it appears from the record that no

documents were supplied to them and ultimately, by

order dated 19/12/2009 (Annexure P/10), the

Collector, Bijapur annulled the appointment of the

petitioners holding that they were not eligible

for appointment on the post of Shiksha Karmi Grade

III and subsequently, the order of petitioners'

termination was passed which was assailed by the

petitioner in WPS No. 5694/2010 but on matter

being remanded by this Court, the order of

termination was maintained. In WPS No. 3874/2010,

petitioner's appeal preferred against the order of

the Collector has also been dismissed by the

Commissioner, Bastar Division by order dated

12/07/2010 (Annexure P/1).

11. The short question involved in these writ

petitions is, whether the order of prescribed

authority/Collector, Bijapur passed under Section

85(1) of the Act of 1993, on being sent to the

State Government/competent authority under Section

85(2) of the Act of 1993, the proviso to Section

85(2) of the Act of 1993 has been complied with

after giving an opportunity of hearing to the

petitioners against the order passed by the

prescribed authority under Section 85(1) of the

Act of 1993 ?

12. At this stage, it would be appropriate to notice

Section 85 of the Act of 1993, which provides as

under :­

"85. Power to suspend execution of orders, etc. ­ (1) The State Government or the prescribed authority may by an order in writing and for reasons to be stated therein suspend the execution of any resolution passed, order issued, licence or permission granted or prohibit the performance of any act by a Panchayat, if in his opinion, ­

(a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised;

(b) such resolution, order licence, permission or act is in excess of the powers conferred by this Act or is contrary to any law; or

(c) the execution of such resolution or order, of the continuance in force of such licence or permission of the doing of such act is likely ­

(i) to cause loss, waste or misapplication of any money or damage to any property vested in the Panchayat;

(ii) to be prejudicial to the public health, safety or convenience;

(iii) to cause injury or annoyance to the public or any class or body of persons; or

(iv) to lead to a breach of peace.

(2) Whenever an order is made by the prescribed authority under sub­section (1), it shall forthwith and in no case later than ten days from the date of order, forward to the State Government or the Officer nominated by the State Government for this purpose, copy of the order with the statement of reasons for making it, and, the State Government or the officer nominated by it may confirm, set aside, revise or modify the order or direct that it shall continue to be in force with or without modification permanently or for such period as may be deemed fit :

Provided that no order of the prescribed authority passed under sub­section (1) shall be confirmed, set aside, revised or modified by the State Government or the officer nominated by it without giving the Panchayat concerned a reasonable opportunity of being heard against the proposed order."

13. Vide notification dated 13/05/2003, the Collector

has been notified as the prescribed authority for

exercise of power conferred under Section 85(1) of

the Act of 1993 qua the Janpad Panchayat.

Similarly, the Director, Panchayat has been

notified to be the competent authority for the

purpose of proviso to Section 85(2) of the Act of

1993 vide notification dated 26/07/2005.

14. Section 85(1) of the Act of 1993 provides power to

the State Government or the prescribed authority

who is empowered to suspend the execution of any

resolution passed, order issued, licence or

permission granted or prohibit the performance of

any act by a Panchayat, by an order in writing and

for reasons to be stated therein, if in his

opinion such resolution, order, licence,

permission or act has not been legally passed,

issued, granted or authorised or such resolution,

order licence, permission or act is in excess of

the powers conferred by this Act or is contrary to

any law or if its execution is likely to cause

some loss or damage to any property vested I the

Panchayat or is prejudicial to public health and

safety or is likely to cause injury or annoyance

to the public or may lead to breach of peace. By

virtue of Section 85(1) of the Act of 1993, only

the power to suspend the execution has been given

to the prescribed authority.

15. By virtue of Section 85(2) of the Act of 1993,

whenever an order is made by the prescribed

authority under Section 85(1), it shall forthwith

and in no case later than ten days from the date

of order, forward to the State Government or the

Officer nominated by the State Government copy of

the order with the statement of reasons for making

it and the State Government or the officer

nominated therein has been empowered to confirm,

set aside, revise or modify the order passed by

the prescribed authority under Section 85(1) of

the Act of 1993.

16. Now comes the proviso to Section 85(2) of the Act

of 1993, which clearly provides that no order of

the prescribed authority passed under Section

85(1) of the Act of 1993 shall be confirmed, set

aside, revised or modified by the State Government

of the officer nominated by it without giving the

Panchayat concerned a reasonable opportunity of

being heard against the proposed order. Proviso to

Section 85(2) of the Act of 1993 contemplates the

opportunity of hearing to be given to the

Panchayat though it is silent as to whether the

opportunity of hearing is required to be given to

the person who is affected by the order of the

prescribed authority, like the petitioners in the

instant case.

17. In this regard, the decision of the Madhya Pradesh

High Court in the matter of Naresh Singh v. State

of M.P. and Others.2 may be noticed herein

profitably in which his Lordship has clearly held

that by virtue of proviso to Section 85(2) of the

Act of 1993, not only the Panchayat but the person

who is affected by the order passed by the

prescribed authority under Section 85(1) of the

Act of 1993 is also required to be given

reasonable opportunity of hearing before

confirming, setting aside, revising or modifying

the order passed under Section 85(1) of the Act of

1993. Paragraph 16 of the judgment states as

under:­

"16. I find that there is violation of Articles 14 and 16 of the Constitution of India in the present case as no opportunity of hearing was afforded. Thus, the order issued is entirely bad in law and is liable to be quashed. As per proviso to Section 85 of the Adhiniyam, reasonable opportunity of being heard against the proposed order could have been afforded not only to the panchayat concerned but also to the person affected by it. The action under Section 85 of the Adhiniyam is not sustainable and consequently removal based on it particularly when the petitioner had served for one and half years, he should have been afforded opportunity of hearing. The law is

2 2002 (2) MPLJ 575

well settled that it is the basic minimum requirement of issuance of show cause notice and the incumbent is required to be head and an enquiry may be conducted which may be necessary in the facts and circumstances of each case. That was not done as held by the Supreme Court in Ku. Neelima Misra vs. Dr. Harinder Kaur Paintal and others, AIR 1990 SC 1402, Shrawan Kumar Jha and others vs. State of Bihar and others, AIR 1991 SC 309, Basudeo Tiwary vs. Sido Kanhu University and others, AIR 1996 SC 2219, S. Ashok Kumar and others vs. State of Tamilnadu and others, 1994(2) SCC 631. A similar view was taken by a Division Bench of this Court in the case of Mata Prasad Sahu vs. State of M.P. and others, 2000(3) MPHT 408."

18. Similarly, in the matter of Sarpanch (supra), the

Division Bench of this Court while dealing with

the proviso to Section 85(2) of the Act of 1993

held as under in paragraphs 16 and 18 :­

"16. Proviso to sub­Section 2 of Section 85 of the Adhiniyam 1993 clearly mandates that the State Government or the Officer nominated by it to give reasonable opportunity of hearing against the proposal/order placed before him for consideration for confirmation or passing some other appropriate order on it. If any statute envisaged the procedure to be followed by the authority exercising his jurisdiction under it, then he is incumbent to give effect to the provision of the statute in that manner only. He is not permitted to act according to his own choice.

18. When under the law it is specifically provided that the order of confirmation is to be passed only after providing reasonable opportunity of being heard then, the Collector was bound to issue notice to the Panchayat before passing order dated 13.08.2019. It appears from the order that no such proceeding was drawn by him. The Collector committed an error in not drawing the proceeding as mandated under Section 85 of the Adhiniyam 1993."

19. From the conspectus of the aforesaid judgments, it

is quite clear that under Section 85(1) of the Act

of 1993, the prescribed authority has the power to

suspend the execution of an order finding it

illegal and thereafter, the prescribed authority

is required to forward its order to the competent

authority/State Government or the Officer

nominated by the State Government within 10 days

for the purpose of Section 85(2) of the Act of

1993 and by virtue of proviso to Section 85(2) of

the Act of 1993, the order passed by the

prescribed authority under Section 85(1) of the

Act of 1993 can be set aside, revised or modified

by the State Government or the officer nominated

by it only after giving an opportunity of hearing

to the Panchayat concerned including the person

who is affected by the order of the prescribed

authority. Any order passed by the State

Government or the officer nominated by it for the

purpose of Section 85(2) of the Act of 1993

without giving reasonable opportunity of hearing

to the concerned Panchayat or the person directly

affected would be without jurisdiction and without

authority of law as proviso to Section 85(2) of

the Act of 1993 is mandatory in character because

under Section 85(1) of the Act of 1993, the

prescribed authority has only been given the power

to suspend the execution of an order finding it

illegal and unless the order of the prescribed

authority is confirmed or modified by the State

Government or the officer nominated by it under

Section 85(2) of the Act of 1993, the order of the

prescribed authority would not have any effect.

Further for the reason that the order passed under

Section 85(1) of the Act of 1993 has drastic

consequences, therefore it requires

confirmation/rectification by the State Government

or the officer nominated by it being the competent

authority after giving reasonable opportunity of

hearing to the concerned Panchayat and the person

affected by the order of the prescribed authority

in terms of proviso to Section 85(2) of the Act of

1993.

20. Reverting to the facts of the present case in

light of the aforesaid legal position, it is quite

vivid that in the instant case though the

prescribed authority being the Collector, Bijapur

initiated proceeding under Section 85(1) of the

Act of 1993 on the request made by the C.E.O.,

Janpad Panchayat, Bhopalpatnam vide his letter

dated 03/10/2009 and passed the order dated

19/12/2009 (Annexure P/10) directing cancellation

of petitioners' appointment on the post of Shiksha

Karmi Grade III and the said order was sent to the

State Government on 23/12/2009, but it appears

that thereafter no proceeding has been initiated

either by the State Government or by the Director,

Panchayat who is the officer nominated by the

State Government for the purpose of Section 85(2)

of the Act of 1993 and no opportunity of hearing

was afforded to the petitioners before confirming

their order of termination. As such, the order

dated 19/12/2009 (Annexure P/10) passed by the

Collector, Bijapur was never confirmed by either

the State Government or the Director, Panchayat.

21. At this stage, it would be appropriate to notice

the decision rendered by the Division Bench of

Madhya Pradesh High Court in the matter of Mukesh

Kr. Harderia v. State of M.P.3 wherein it has

clearly been held that the lifespan of order

passed under Section 85(1) of the Act of 1993 is

only 10 days and it has to be thereafter confirmed

as per proviso to Section 85(2) of the Act of

1993, which states as under :­

"If the recommendations made by the Sub Divisional Officer are accepted by the State Government then only a final order of an effective order would come into being and such an order can only be challenged. If the Sub Divisional Officer in his wisdom does not refer the matter to the State Government or the officer nominated by the State Government

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then the order passed by the Sub Divisional Officer under Section 85(1) of the Adhiniyam in fact would lose its efficacy after 10 days and would become a dead letter. The recommendations made by the Sub Divisional Officer to the State Government or to the officer nominated by the State Government cannot be challenged in an appeal."

22. In the instant case, since the order of Collector,

Bijapur dated 19/12/2009 (Annexure P/10) though

was forwarded to the State Government within 10

days, but as per Section 85(2) of the Act of 1993

no proceeding was initiated either by the State

Government or by the Director, Panchayat being the

officer nominated by the State Government and by

virtue of proviso to Section 85(2) of the Act of

1993, no notice was issued either to the concerned

Panchayat or to the petitioners giving them

reasonable opportunity of hearing, as such, the

order passed by the Collector annulling the

appointment of petitioners was never confirmed in

accordance with proviso to Section 85(2) of the

Act of 1993 and therefore, it has come to an end

after the period of ten days and has lost its

efficacy. Thus, no order of termination could have

been passed on the basis of order dated 19/12/2009

(Annexure P/10) passed by the Collector, Bijapur

under Section 85(1) of the Act of 1993.

23. As a fallout and consequence of the aforesaid

discussion, since the order dated 19/12/2009

(Annexure P/10) passed by the Collector, Bijapur

has lost its efficacy, the order of petitioners'

termination is without jurisdiction and without

authority of law. Accordingly, order dated

19/12/2010 (Annexure P/10) to the extent of the

petitioners Kavita Pandey and Shashiprabha Singh

is hereby quashed. The order dated 12/07/2010

(Annexure P/1 in WPS No. 3874/2010) by which the

Commissioner has affirmed the order of the

Collector in the appeal preferred by the

petitioner Kavita Pandey is also hereby quashed.

Similarly, the order dated 21/07/2010 (Annexure

P/1 in WPS No. 5694/2010) terminating petitioner

Shashiprabha Singh from service is also quashed.

Since petitioner in WPS No. 3874/2010 namely

Kavita Pandey is already working, no further order

is required in her case, however, since petitioner

in WPS No. 5694/2010 namely Shashiprabha Singh has

been removed from service, she shall be reinstated

with all service benefits except full backwages.

The question of full backwages shall be considered

by the Janpad Panchayat, Bhopalpatnam in

accordance with/in line with Rule 54 of the

Fundamental Rules within 60 days from the date of

receipt of copy of this order.

24. Accordingly, both the writ petitions are allowed

to the extent indicated herein­above. No cost(s).

Sd/­ (Sanjay K. Agrawal) Judge

Harneet