Nisha Shriwas vs Smt. Bharti Dubey
2022 Latest Caselaw 6710 Chatt

                                    1


                                                                      NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                     Writ Appeal No. 167 of 2019

1.   Avinash Tiwari S/o Shri Dinesh Tiwari, aged about 45 years, R/o
     New Baradwar, District Janjgir-Champa (C.G.)
2.   Nisha Shriwas D/o Shri Basant Lal Shriwas, aged about 44 years,
     R/o New Baradwar, District Janjgir-Champa (C.G.)
                                                              ---- Appellants
                                 Versus
1.   Ramsharan Yadav S/o Dujram Yadav, aged about 35 years, R/o
     Village-Baradwar, Tahsil Sakti, District Janjgir-Champa (C.G.)
2.   State of Chhattisgarh, Through The Secretary, Department of
     Urban Development and Administration, Mantralaya, D.K.S.
     Bhawan, Raipur (C.G.)
3.   Commissioner/Appellate Authority, Directorate Urban Administration
     and Development, Raipur (C.G.)
4.   Nagar Panchayat Naya Baradwar, Through Its Chief Municipal-
     Officer, District Janjgir-Champa (C.G.)
5.   The Collector, Janjgir, District Janjgir-Champa (C.G.)
6.   Tiketram Chandravanshi, S/o Guharam, R/o Bhagodih, Tahsil Sakti,
     District Janjgir-Champa (C.G.)
7.   Smt. Bharti Dubey W/o Priya Dubey, aged about 35 years, R/o
     Naya Baradwar, Tahsil Sakti, District Janjgir-Champa (C.G.)
                                                        ---- Respondents

(Cause-title taken from Case Information System)

For Appellants : Mr. Prafull N. Bharat, Senior Advocate along with Mr. Harshal Chouhan, Advocate.

For Respondent No. 1 : Mr. Ajay Shrivastava, Advocate. For Respondents No. 2,3&5 : Ms. Astha Shukla, Government Advocate. For Respondent No. 7 : Mr. Varun Sharma, Advocate.

and

Writ Appeal No. 170 of 2019

1. Nisha Shriwas D/o Shri Basant Lal Shriwas, aged about 45 years,

R/o New Baradwar, District Janjgir-Champa (C.G.)

2. Avinash Tiwari S/o Shri Dinesh Tiwari, aged about 45 years, R/o New Baradwar, District Janjgir-Champa (C.G.)

---- Appellants

Versus

1. Smt. Bharti Dubey W/o Priy Dubey, aged about 35 years, R/o Naya Baradwar, Tahsil Sakti, District Janjgir-Champa (C.G.)

2. State of Chhattisgarh Through The Secretary, Department of Urban Development and Administration, Mantralaya. D.K.S. Bhawan, Raipur (C.G.)

3. Commissioner/Appellate Authority, Directorate Urban Administration and Development, Raipur (C.G.)

4. Nagar Panchayat Naya Baradwar, Through Its Chief Municipal Officer, District Janjgir-Champa (C.G.)

5. The Collector, Janjgir, District Janjgir-Champa (C.G.)

---- Respondents

(Cause-title taken from Case Information System)

For Appellants : Mr. Prafull N. Bharat, Senior Advocate along with Mr. Harshal Chouhan, Advocate.

For Respondents No. 1 : Mr. Varun Sharma, Advocate. For Respondents No. 2,3&5 : Ms. Astha Shukla, Government Advocate. For Respondent No. 4 : Ms. Sunita Jain, Advocate.

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri Sanjay Agrawal, Judge

Judgment on Board

Per Arup Kumar Goswami, Chief Justice

10.11.2022

By judgment dated 27.08.2018, the learned Single Judge allowed

two writ petitions, namely, Writ Petition (S) No. 6936 of 2009 and Writ

Petition (S) No. 1102 of 2010.

2. Writ Appeal No. 167 of 2019 is preferred against Writ Petition (S)

No. 1102 of 2010 and Writ Appeal No. 170 of 2019 is preferred against

Writ Petition (S) No. 6936 of 2009.

3. The appellants in Writ Appeal No. 167 of 2019, namely, Avinash

Tiwari and Nisha Shriwas were respondents No. 5 & 6, respectively, in

Writ Petition (S) No. 6936 of 2009 and appellants Nisha Shriwas and

Avinash Tiwari (also the appellants in Writ Appeal 167 of 2019) were

respondents No. 8 & 7, respectively, in Writ Petition (S) No. 1102 of 2010.

4. Heard Mr. Prafull N. Bharat, learned senior counsel, appearing for

the appellants in both these appeals, assisted by Mr. Harshal Chouhan,

Mr. Ajay Shrivastava, learned counsel, appearing for respondent No. 1,

Ms. Astha Shukla, learned Government Advocate, appearing for

respondents No. 2, 3 & 5 and Mr. Varun Sharma, learned counsel,

appearing for respondent No. 7 in Writ Appeal No. 167 of 2019.

5. Order of the Court dated 21.06.2021 indicated that none appears

for respondent No. 6, Tiketram Suryavanshi. Today also, there is no

appearance on his behalf.

6. We have also heard Mr. Varun Sharma, learned counsel, appearing

for respondent No. 1, Ms. Astha Shukla, learned Government Advocate,

appearing for respondents No. 2, 3 & 5 and Ms. Sunita Jain, learned

counsel, appearing for respondent No. 4 in Writ Appeal No. 170 of 2019.

7. Pursuant to an advertisement (the learned counsel for the parties

are unable to give the date of advertisement) for the post of Siksha

Karmi-Grade-III, appointment order dated 16.09.1998 was issued in

favour of the present appellants.

8. The writ petitioners in Writ Petitions (S) Nos. 6936 of 2009 and

1102 of 2010 had also participated in the said selection process. Being

unsuccessful in securing appointment, they preferred an appeal under

Rule 12 of the Nagar Palika Siksha Karmi (Recruitment and Conditions of

Service) Rules, 1998 (for short, 'Rules of 1998') before the Collector. The

appeal was allowed by an order dated 25.10.1999 by setting aside the

order of appointment of the present appellants and by issuing a direction

to issue appointment order in their favour.

9. Being aggrieved by the order of the Collector, the present

appellants filed a writ petition, being Writ Petition (S) No. 538 of 2001,

which was disposed of on 11.12.2003 directing them to avail remedy of

appeal before the Director, Panchayat.

10. It is submitted by Mr. Bharat that such an order was passed as the

petitioners in Writ Petition (S) Nos. 6936 of 2009 and 1102 of 2010 had

raised an objection on the maintainability of the petition contending that

alternative remedy was available.

11. It appears that subsequent to the order of the Collector, the writ

petitioners in Writ Petition (S) Nos. 6936 of 2009 and 1102 of 2010 were

granted appointment on 15.11.2000. The learned counsel for the parties,

however, are in agreement that in view of an interim order passed in Writ

Petition (S) No. 538 of 2001, the appellants herein continued to discharge

the duties in the interregnum period.

12. The appellants herein, thereafter, preferred an appeal before the

Director, Panchayat, who, in turn, refused to entertain the appeal

contending that he has no jurisdiction and authority to decide the same,

as the matter pertained to Urban Administration Department.

13. Situated thus, the appellants herein again preferred a writ petition

which was registered as Writ Petition No. 1759 of 2004. The same was

disposed of by an order dated 09.09.2005. A perusal of the order of the

learned Single Judge would go to show that on a submission advanced

by the appellants, direction was issued to the Director/ Commissioner of

the Urban Administration Department (for short, 'Commissioner') to

decide the appeal against the order of the Collector dated 25.10.1999

and to decide the revision/appeal within a period of six weeks from the

date of its presentation, without raising any technical objection. The order

dated 09.09.2005 further goes to show that the interim order granted on

03.08.2004 was directed to be continued for a period of eight weeks from

that date.

14. Pursuant to the aforesaid direction of this Court dated 09.09.2005,

the Commissioner, after hearing the parties, by an order dated

24.11.2005, remanded the matter to the Collector for fresh consideration.

15. The appeal was again heard by the Collector and by an order dated

18.03.2009, it was held that the petitioners in Writ Petition (S) Nos. 6936

of 2009 and 1102 of 2010 were rightly directed to be given appointment

and accordingly, the appointment made in favour of the present

appellants were cancelled.

16. This order of the Collector dated 18.03.2009 came to be appealed

before the Commissioner. The Commissioner, by an order dated

09.11.2009, set aside the order of the Collector dated 18.03.2009 and

ordered restoration of appointment in favour of the present appellants.

17. In the present writ petitions, out of which the present appeals arise,

the order dated 09.11.2009 of the Commissioner is called into question.

18. It is the common ground of the learned counsel for the parties that

in the interregnum period, the present appellants are continuing in service

and they are discharging their duties.

19. Mr. Varun Sharma, however, submits that subsequent to the order

of the Collector, the writ petitioners in Writ Petition (S) Nos. 6936 of 2009

and 1102 of 2010 were issued appointment orders in schools other than

the ones where the present appellants were discharging their duties. But,

the petitioner in Writ Petition (S) No. 6936 of 2009 did not join as only

fresh appointment was given without past benefits.

20. On consideration of the materials on record and the relevant rules,

the learned Single Judge opined that the appeal preferred by the present

appellants before the Commissioner was incompetent as there was no

such provision for appeal and the fact that in the earlier rounds of

litigation, directions were given for availing remedy before such authority

would be of no consequence, as the Court cannot confer jurisdiction upon

an authority unless appellate power is vested by relevant statute. Holding

thus, the order of the Commissioner was set aside reserving liberty to the

present appellants to avail appropriate remedy in accordance with law.

Consequently, the order dated 09.11.2009 was set aside with

consequential benefits to the petitioners in Writ Petition (S) No. 6936 of

2009 and 1102 of 2010.

21. Mr. Bharat is candid enough to submit before the Court that under

the Rules of 1998, there is no provision for a second appeal against the

order of the Collector. He has, however, assiduously urged the Court that

in the attending facts and circumstances, the appellants cannot be faulted

with for again seeking remedy before the Commissioner to whom the

appellants were earlier directed to prefer an appeal, and in that

circumstance, when the appellants were continuing in service during the

pendency of the writ petition also, opportunity ought to have been

granted to the appellants to seek remedial measures by protecting their

interest for a limited period as was done while Writ Petition No. 1759 of

2004 was disposed.

22. Mr. Bharat also submits that the present appellants also preferred

review petitions, being Review Petition Nos. 178 of 2018 and 183 of 2018

and the same also came to be dismissed on 19.02.2019.

23. Mr. Ajay Shrivastava and Mr. Varun Sharma, however, submit that

no obligation is cast on the writ Court to protect the services of the

petitioners, till they avail remedy in accordance with law.

24. Ms. Sunita Jain submits that the petitioners in Writ Petition (S)

Nos.6936 of 2009 and 1102 of 2010 were also offered appointment.

However, the petitioner in Writ Petition (S) No. 6936 of 2009 has not

taken the appointment on the ground that the consequential benefits

have not been granted.

25. Mr. Ajay Shrivastava also submits that Ramsharan Yadav, though

had taken appointment, as the appointment was not given in terms of the

order passed by the Collector, a contempt application was filed by him.

26. It is not necessary for us to dilate on these aspects of the matter as

it is an admitted position that the appellants were continuing in service till

disposal of Writ Petition (S) Nos. 6936 of 2009 and 1102 of 2010. When

notice was issued in the writ appeals vide order dated 04.04.2019, taking

note of the fact that the appellants had been relieved of their duties

pursuant to the order of the learned Single Judge, it was provided that the

appellants shall not be removed from service pursuant to the order of the

learned Single Judge, also providing that if any order of removal is

passed against the appellants, the same shall remain stayed and the

appellants shall be allowed to continue on their respective posts. The

aforesaid order is still continuing as on today.

27. In the conspectus of facts, as noticed hereinabove, we are of the

opinion that no interference with the order of the learned Single Judge

reserving liberty to the appellants to avail appropriate remedy is called

for. However, we feel that for ends of justice, the interim order passed by

this Court ought to be continued for a limited period of four weeks in order

to enable them to avail such remedy. Consequently, direction of the

learned Single Judge in favour of the petitioners in Writ Petition (S) Nos.

6936 of 2009 and 1102 of 2010 shall not be given effect to. Order of the

learned Single Judge is modified to that effect.

28. We, however, hasten to add that we have not expressed any

opinion on merit of the case of either of the parties and if any remedy is

availed of, the authority/Court will decide the issue in accordance with

law.

29. Writ appeals stand disposed of with modification of the order of the

learned Single Judge as indicated above.

30. No cost.

                           Sd/-                                      Sd/-
                   (Arup Kumar Goswami)                        (Sanjay Agrawal)
                       Chief Justice                               Judge



Brijmohan