Chattisgarh High Court

Sanjay Sharma And Anr vs State Of Chhattisgarh And Ors on 25 July, 2022

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Writ Petition (S) No.3365 of 2013

Order Reserved on : 8.7.2022
Order Passed on : 25.7.2022

1. Harendra Kumar Sahu, son of late L.K. Sahu, aged about 52 years,
R/o Near Rotary Club, Opposite Priyadarshini Colony, Phase-II,
Vallabh Nagar, Ravindra Nath Tagor Ward, P.S. Rajendra Nagar, Civil
and Revenue District Raipur, Chhattisgarh
2. P. Rajesh Naidu, son of Shri P.Y.R. Naidu, aged about 49 years, R/o
Piyush Colony, Amalidih, Raipur, P.S. Rajendra Nagar, Civil and
Revenue District Raipur, Chhattisgarh
3. Lokesh Chandravanshi, son of late Shri Kripa Shankar Chandravanshi,
aged about 52 years, R/o A-20, Radhaswami Nagar, Bhatagaon, Ring
Road Chowk, Raipur, P.S. Purani Basti, Civil and Revenue District
Raipur, Chhattisgarh
---- Petitioners
versus
1. State of Chhattisgarh through Secretary, Urban Administration and
Development Department, Mahanadi Bhawan, Mantralaya, New
Raipur, Chhattisgarh
2. Under Secretary, Urban Administration and Development Department,
Mahanadi Bhawan, Mantralaya, New Raipur, Chhattisgarh
3. Commissioner, Municipal Corporation, Raipur, District Raipur,
Chhattisgarh
--- Respondents

Writ Petition (S) No.3366 of 2013
1. Shibo Lal Patel, son of Shri Shriram Patel, aged about 52 years, R/o
House No.327, Maitri Nagar, Near Adarsh Chowk, Pt. Sundar Lal
Sharma Ward, Raipur, P.S. D.D. Nagar, Civil and Revenue District
Raipur, Chhattisgarh
2. Vijay Singh, son of late Shri Ramesh Singh, aged about 51 years, R/o
Near Agrasen Chowk, Samta Colony, Raipur, P.S. Azad Chowk, Civil
and Revenue District Raipur, Chhattisgarh
---- Petitioners
versus
1. State of Chhattisgarh through Secretary, Urban Administration and
Development Department, Mahanadi Bhawan, Mantralaya, New
Raipur, Chhattisgarh
2. Under Secretary, Urban Administration and Development Department,
Mahanadi Bhawan, Mantralaya, New Raipur, Chhattisgarh
3. Commissioner, Municipal Corporation, Raipur, District Raipur,
Chhattisgarh
--- Respondents
2

Writ Petition (S) No.3401 of 2013
1. Sanjay Sharma, son of late Shri O.L. Sharma, aged 52 years,
occupation service, Assistant Engineer, Zone No.5, Municipal
Corporation, Raipur, presently having charge of In-charge Executive
Engineer, resident of Sadar Bazar, Raipur, Post Office and Police
Station City Kotwali (Civil), Raipur, Chhattisgarh
2. Rajesh Singh Thakur, son of Shri Anjor Singh, aged 52 years,
occupation service, Assistant Engineer, Zone No.4, Municipal
Corporation, Raipur, presently having charge of In-charge Executive
Engineer, resident of Kayasthpara, Purani Basti, Raipur, Post Office
and Police Station Purani Basti, Raipur, Civil and Revenue District
Raipur, Chhattisgarh
---- Petitioners
versus
1. State of Chhattisgarh through the Secretary, Ministry of Urban
Administration and Development, Mantralay, Mahanadi Bhawan, Naya
Raipur, Chhattisgarh
2. Director, Urban Administration and Development, R.D.A. Building,
Shastri Chowk, Raipur, Chhattisgarh
3. Municipal Corporation, Raipur, through its Commissioner, Near Mahila
Thana Chowk, Raipur, District Raipur, Chhattisgarh
4. Commissioner, Municipal Corporation, Raipur, Near Mahila Thana
Chowk, Raipur, District Raipur, Chhattisgarh
--- Respondents

Writ Petition (S) No.3402 of 2013
1. Surya Prakash Tripathi, son of Shri R.K. Tripathi, aged 51 years,
occupation service, Assistant Engineer, Zone No.6, Municipal
Corporation, Raipur, presently having charge of In-charge Executive
Engineer, resident of In front of HIG-10, Sector-1, Deendayal
Upadhyay Nagar, Raipur, Post Office and Police Station Deendayal
Upadhyay Nagar, Raipur, Chhattisgarh
2. Vinod Kumar Chaturvedi, son of Shri V.N. Chaturvedi, aged 52 years,
occupation service, Assistant Engineer, Municipal Corporation, Raipur,
presently having charge of In-charge Executive Engineer, resident of
J.S. Sector - 2, Awanti Vihar, Telibandha, Raipur, Post Office and
Police Station Telibandha, Raipur, Civil and Revenue District Raipur,
Chhattisgarh
---- Petitioners
versus
1. State of Chhattisgarh through the Secretary, Ministry of Urban
Administration and Development, Mantralay, Mahanadi Bhawan, Naya
Raipur, Chhattisgarh
2. Director, Urban Administration and Development, R.D.A. Building,
Shastri Chowk, Raipur, Chhattisgarh
3. Municipal Corporation, Raipur, through its Commissioner, Near Mahila
Thana Chowk, Raipur, District Raipur, Chhattisgarh
4. Commissioner, Municipal Corporation, Raipur, Near Mahila Thana
Chowk, Raipur, District Raipur, Chhattisgarh
--- Respondents
3

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For Respective Petitioners : Shri Rajeev Shrivastava, Senior Advocate with Shri Malay Shrivastava, Advocate and Shri Surfaraj Khan, Advocate For Respective Respondents : Shri H.B. Agrawal, Senior Advocate with Shri Pankaj Agrawal, Advocate and Ms. Ruchi Nagar, Deputy Govt. Advocate

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. ORDER

1. Since all the above writ petitions arise out of common orders, they

are heard and decided together.

2. In the instant bunch of writ petitions, the Petitioners have called in

question order dated 16.9.2013 by which the State Government

directed the Commissioner, Municipal Corporation, Raipur to cancel

the promotion given to the Petitioners on the post of Assistant

Engineer on the ground that their appointment by promotion is not

in accordance with law and the reservation rules have not been

followed.

3. Case of the Petitioners is that they were appointed as Sub-

Engineers in the Municipal Corporation, Raipur. Being eligible to

be promoted to the post of Assistant Engineer as per the provisions

of Chhattisgarh Municipal Corporation (Appointment and Conditions

of Service of Officers and Servants) Rules, 2007 read with

Chhattisgarh Public Service (Promotion) Rules, 2003, the

Departmental Promotion Committee (henceforth 'the DPC') in its

meeting dated 5.9.2008 recommended names of the Petitioners for

promotion to the post of Assistant Engineer and consequently vide

order dated 6.9.2008 the Petitioners were promoted to the post of

Assistant Engineer from the post of Sub-Engineer and since

6.9.2008 the Petitioners are working as Assistant Engineers. The

State/Respondent vide its order dated 16.9.2013 directed the

Municipal Corporation/Respondent to cancel the promotion of the

Petitioners on the ground that the DPC had made

recommendations on the basis of notification dated 16.11.2007

issued by the General Administration Department of the

Government of Chhattisgarh, which is not proper and it was also

found that the reservation rules were not followed by the DPC. As

a consequence of the order dated 16.9.2013 passed by the

State/Respondent, the Municipal Corporation/Respondent vide

order dated 20.9.2013 cancelled the promotion of the Petitioners.

4. Shri Rajeev Shrivastava, Learned Senior Counsel with Shri Malay

Shrivastava, Learned Counsel appearing for Petitioners Sanjay

Sharma and Rajesh Singh Thakur in Writ Petition (S) No.3401 of

2013 submitted that total 31 posts of Assistant Engineer were

available for promotion, which, by the State Government, vide order

dated 2.9.2008, were classified as 27 posts for civil branch, 1 post

for mechanical branch and 3 posts for electrical branch. Out of

them, 50% posts were to be filled-in through departmental

promotion. The DPC recommended the names of Petitioner Sanjay

Sharma for promotion to the post of Assistant Engineer in civil

branch and Petitioner Rajesh Singh Thakur for promotion to the

post of Assistant Engineer in electrical branch. Both these

Petitioners were promoted to the post of Assistant Engineer in

general category. Therefore, the order of the State Government

with regard to these two Petitioners that the reservation rules have

not been followed suffers from perversity. It was further submitted

by Learned Senior Counsel that pursuant to the promotion order,

the Petitioners joined their duties as Assistant Engineer on

6.9.2008 itself and since then they are discharging their duties as

Assistant Engineer. After a lapse of five years, suddenly, their

promotion order was cancelled by the Municipal

Corporation/Respondent on the basis of the order of the

State/Respondent which caused serious prejudice to the

Petitioners. Without conducting any departmental inquiry or without

giving any opportunity of hearing to the Petitioners the orders have

been passed by the State and the Municipal

Corporation/Respondents, therefore, there is a violation of

principles of natural justice.

5. Shri Surfaraj Khan, Learned Counsel appearing for the Petitioners

of Writ Petitions (S) No.3365 of 2013, 3366 of 2013 and 3402 of

2013 submitted that pursuant to the promotion order dated

6.9.2008 the Petitioners of all the three writ petitions joined their

duties as Assistant Engineer and after a lapse of five years,

suddenly, without giving any notice or conducting any departmental

inquiry their promotion orders have been cancelled by the Municipal

Corporation/Respondent consequent to the order dated 16.9.2013

passed by the State/Respondent. This caused a serious prejudice

to the Petitioners and it is a case of violation of principles of natural

justice. Therefore, only on this ground the impugned order dated

16.9.2013 passed by the State/Respondent is not sustainable.

6. Ms. Ruchi Nagar, Learned Deputy Government Advocate

appearing for the State/Respondents submitted that the Petitioners

were promoted to the post of Assistant Engineer on a probation for

a period of two years in anticipation of approval by the State

Government which is required under Section 58(1)(iii) of the

Chhattisgarh Municipal Corporation Act, 1956. From a perusal of

said Section 58(1)(iii), it is evident that every appointment or

promotion shall be subject to prior confirmation by the State

Government and the decision of the State Government shall be

final. Without taking prior confirmation, the Municipal Corporation,

Raipur issued the promotion order dated 6.9.2008 in anticipation of

confirmation from the State Government. When the matter was

brought to the notice of the State Government, an inquiry was

conducted by the Joint Director, Directorate of Urban Administration

and Development, Raipur and in the inquiry it was found that the

entire promotion order issued by the Municipal Corporation, Raipur

was against the rules. After obtaining the inquiry report, the State

Government issued the impugned order dated 16.9.2013. From a

perusal of the inquiry report, it appears that at the time of granting

promotion, reservation rules were not followed. It was further

submitted by Learned Deputy Government Advocate that so far as

non-compliance of the principles of natural justice is concerned, the

promotions were made in anticipation of confirmation by the State

Government and, therefore, the Petitioners were very well aware

that their promotions were subject to confirmation by the State

Government. Therefore, there is no prejudice caused to the

Petitioners and the principles of natural justice cannot be put into a

straight-jacket formula in this case.

7. Shri H.B. Agrawal, Learned Senior Counsel with Shri Pankaj

Agrawal, Learned Counsel appearing for the Municipal Corporation/

Respondents submitted that the promotion order dated 6.9.2008 of

the Petitioners was issued in anticipation of approval of the State

Government. Hence, it was provisional in nature. Vide the

impugned order dated 16.9.2013, the State Government, after due

consideration, has held that the promotions of the Petitioners are

not in conformity with the reservation rules and hence the State

Government has not accorded its approval and has further directed

the Municipal Corporation/Respondent to cancel the promotions of

the Petitioners. In view of the above, the order passed by the

State/Respondent, the Municipal Corporation, Raipur passed the

impugned order dated 20.9.2013, as the Municipal Corporation is

bound by the order of the State Government as per the Municipal

Corporation Act.

8. I have heard the arguments raised on behalf of the parties and

perused the entire material available with due care.

9. It is not in dispute that the Petitioners were working as Sub-

Engineer and after the recommendations of the DPC, vide the order

dated 6.9.2008 they were promoted to the post of Assistant

Engineer. It is also not in dispute that their promotion was

cancelled after a lapse of five years vide order dated 16.9.2013

passed by the State/Respondent and order dated 20.9.2013

passed by the Municipal Corporation/Respondent.

10. From perusal of the impugned order dated 16.9.2013 passed by

the State/Respondent, it appears that the promotion of the

Petitioners were cancelled only on the ground that

recommendations for promotion were made violating the

reservation rules. It is also not in dispute that prior to the passing of

the impugned order dated 16.9.2013, none of the Petitioners were

given any notice nor was any departmental inquiry conducted

against them. In Murlidhar Gautam v. State of M.P. (now C.G.),

2008 (3) CGLJ 288, this Court held as under:

"8. It is evident that the promotion under order dated 25.3.1989 (Annexure A/2) was passed on the basis of the recommendations made by the Departmental Promotion Committee. The Departmental Promotion Committee, it appears, had examined all the aspects of the matter before recommending the name of petitioner for promotion, along with 57 other persons. The impugned order was passed without affording an opportunity of hearing to the petitioner. The contention of learned counsel appearing for the State that no show cause notice was required to be issued, is noticed to be rejected on the simple ground that no order which is punitive in nature and visits with civil consequences, causing prejudice to the person concerned can be passed without following the principles of natural justice.

9. Hon'ble Supreme Court in Bhagwan Shukla v.

Union of India & others, AIR 1994 SC 2480 held as under:

"The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard.

Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter."

10. This Court in the matter of Laxman Prasad v. Krishi Upaj Mandi Samiti, Bemetara (Writ Petition No.2800 of 1995), which was allowed vide judgment and order dated 17 th April, 2006, held that no punitive order can be passed without affording an opportunity of hearing to the person concerned, who is affected prejudicially by the impugned order."

11. In Rajasthan State Road Transport Corporation v. Bal Mukund

Bairwa (2), (2009) 4 SCC 299, it was observed by the Supreme

Court thus:

"35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, this Court held: (SCC p. 660, para 55) "55. ... No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity."

47. The purpose of the principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is the pragmatic requirement of fair play in action. (See Sawai Singh v. State of Rajasthan, (1986) 3 SCC 454 and Narinder Mohan Arya v. United India Insurance Co. Ltd., (2006) 4 SCC 713)"

12. In Prakash Ratan Sinha v. State of Bihar, (2009) 14 SCC 690, the

Supreme Court held as follows:

"9. The respondent is an instrumentality of the State, and therefore,, all its administrative decisions would be subject to the doctrine of equality and fair play, as incorporated in Articles 14 and 21 of the Constitution of India. If any of its actions or administrative decisions result in civil consequences,

the principles of natural justice. This principle of law has been laid down by this Court in a catena of cases. The law in this regard has been settled by several decisions of this Court. The principle that emerge from the decisions of this Court is that, if there is a power to decide and decide detrimentally to the prejudice of a person, duty to act judicially is implicit in exercise of such a power and that the rule of natural justice operates in areas not covered by any law validly made."

13. As, after a lapse of five years, suddenly, without giving any notice

to the Petitioners or without conducting any departmental inquiry

against them, the impugned order dated 16.9.2013 was passed by

the State Government, according to me, it is certainly a violation of

the principles of natural justice in the light of the above

observations made by the Supreme Court and this Court.

14. With regard to non-compliance of the reservations rules, in case of

Petitioners Sanjay Sharma and Rajesh Singh Thakur of Writ

Petition (S) No.3401 of 2013, from perusal of the proceedings of

the DPC dated 5.9.2008, it is apparent that Petitioners Sanjay

Sharma and Rajesh Singh Thakur were promoted from general to

general category. I do not find any violation of any reservation