Kulesh Kumar Sahu vs State Of Chhattisgarh And Ors
2023 Latest Caselaw 1117 Chatt

                                             1

                                                                                 AFR

              HIGH COURT OF CHHATTISGARH, BILASPUR
                          Order Reserved on 17/11/2022
                          Order Delivered on 22/02/2023
                               WPS No. 1226 of 2014
       Kulesh Kumar Sahu S/o Shree Rama Sahu Aged About 30 Years R/o
        Village And Post Selegaon, Tehsil Bhanupratappur, Distt. Uttar Bastar
        Kanker, Chhattisgarh.
                                                                        ---- Petitioner
                                          Versus
      1. State of Chhattisgarh, Through: The Secretary, Department of Forest,
         Mantralaya, Capital Complex, Mahanadi Bhawan, Anay Raipur Distt.
         Raipur, Chhattisgarh.
      2. Chief Conservator of Forest Officer Chief Conservator of Forest, Raipur,
         District : Raipur, Chhattisgarh.
      3. Conservator of Forest, Office of The Conservator of Forest Kanker, Circle
         Kanker, Tehsil And Post Kanker Distt. Uttar Bastar, Kanker, Chhattisgarh.
      4. Divisional Forest Officer East Bhanupratappur, Forest Circle, Circle
         Bhanupratappur, Forest Circle Bhanuprataippur, District- Uttar Bastar
         Kanker, Chhattisgarh.
      5. The Selection Committee, Through: Its Chairman Divisional Forest Officer
         East Bhanupratappur, Forest Circle Bhanupratappur Distt. Uttar Bastar
         Kanker, Chhattisgarh.
      6. Mahendra Singh S/o Santbux Singh Aged About 33 Years R/o Karmachari
         Colony, Sambalpur Road, Tahsil And Thana, Bhanupratappur, District-
         North Bastar Kanker, Chhattisgarh.
                                                                    ---- Respondents



For Petitioner                      :        Mr. D.N. Prajapati, Adv.
For State                           :        Ms. Shivali Dubey, P.L.
For Respondent                      :        Mr. Parag Kotecha, Adv.



                      Hon'ble Smt. Justice Rajani Dubey, J.

C A V Order

1. This petition is filed under Article 226 of the Constitution of India against

the order dated 13.02.2014 passed by the respondent No. 4 whereby the

respondent terminated the petitioner's services as Data Entry Operator.

2.1 The brief facts of the case are that the petitioner is a bona fide resident of

the State of Chhattisgarh. Respondent No. 2-Chief Conservator of Forest issued

an advertisement on 31.07.2013 for filling up various vacant posts of Assistant

Grade-III, Data Entry Operator, Assistant Programmer and Steno through direct

recruitment and invited applications from suitable and eligible candidates. The

petitioner and other candidates applied for one post of Data Entry Operator and

on primary scrutiny, the candidatures of 42 candidates were found fit for the

written examination and skill/ability test who appeared in the written examination

and skill/ability test held on 27/11/2013. The recruitment process was done strictly

according to the prescribed procedure as per Annexure-P/1 and respective lists of

selected candidates for the different posts were prepared by respondent No. 4

according to the merits of the candidates as per their qualifications and marks

obtained by them in the written examination and skill/ability test in which the

petitioner's name was at the top of the list prepared for the post of the Data Entry

Operator.

2.2 Thereafter, the list so prepared was sent to respondent No. 3 for approval

which was approved vide letter dated 30.12.2013. Thereafter, the respondent No.

4 (Divisional Forest Officer) issued the appointment order/letter dated 03.01.2014

(Annexure-P/2) to the petitioner whereby the petitioner was appointed to the post

of Data Entry Operator and was directed to report at the office of the respondent

No. 4 along with all the required original testimonies of his qualification and he

joined on 08.01.2014 (Annexure-P/3) at the office of respondent No. 4. On the

date of joining, the concerned staff member of the office of the respondent No. 4

received the joining of the petitioner and advised him to wait for some time as he

wanted to have instruction from the respondent No. 4 but even after waiting for a

long time, when nothing was done for his joining, the petitioner met respondent

No. 4 and requested to allow his joining but respondent No. 4 instead of accepting

the joining of the petitioner informed the petitioner that one Rajesh Rangari has

made a complaint to the Chief Minister, State of Chhattisgarh in which he alleged

that the answer sheets of the selected and other candidates for the post of Data

Entry Operator have been wrongly checked and ineligible and unqualified

candidates have been selected. Therefore, in view of the facts alleged in the said

complaint, the joining of the petitioner is kept in abeyance till the re-checking of

answer sheets of candidates No. 1 and 2 and the petitioner was advised to visit

the office after 15.01.2014 in this regard.

2.3 Thereafter, respondent No. 4 issued an order dated 13.01.2014 to the

petitioner informing that for the reason that there being an inquiry into the

complaint regarding errors in the answer sheets of the written/practical test, the

effect and operation of the appointment order dated 03.01.2014 issued to the

petitioner has been stayed till the issuing of amended order. Respondent No. 4

after a lapse of three weeks issued a fresh appointment order/letter dated

21.01.2014 to the petitioner and directed the petitioner to give joining at his office

on the post of data entry operator. The appointment order apart from the usual

conditions also bore an arbitrary and unreasonable condition as condition No. 9

wherein it was stated that because of the complaint made in this regard, re-

checking/re-valuation of the answer sheets were being done and if on enquiry any

variation in the merits of the candidates is found, the appointment shall

automatically stand cancelled (Annexure-P/6). As per the order dated 21.01.2014,

the petitioner reported at the office of respondent No. 4 and joined on 24.01.2014

which was received by the concerned office staff of respondent No. 4 and the

petitioner's joining was accepted and he was allowed to start working on the post

of data entry operator (Annexure-P/7). The petitioner was allowed to work for

about 2 weeks on the post of data entry operator and on 13.02.2014 (Annexure-P/

8) respondent No. 4 issued an order containing the brief details of proceedings

carried into the alleged complaint made regarding the checking of the answer

sheets of the candidates for the post of data entry operator and vide the aforesaid

impugned order the respondent No. 4 cancelled the appointment of the petitioner

and terminated the services of the petitioner.

2.4 Accordingly, against this conduct of the respondent authorities, the

petitioner filed this petition for the following reliefs:-

"10.1. This Hon'ble Court may kindly be pleased to issue an appropriate writ/order/direction, quashing the impugned order dated 13.02.2014 and proceeding connected therewith passed and carried by the respondent No. 4 whereby the respondent No. 4 terminated the petitioner's services as data entry operator with immediate effect and further be pleased to declare the entire action of the respondent No. 4 leading to termination of the petitioner from services illegal, invalid and unsustainable in the eyes of law.

10.2. This Hon'ble Court may kindly be pleased to issue an appropriate writ/order/direction, declaring the condition No. 9 of the appointment order of the petitioner dated 21.01.2014 (Annexure-P/6) illegal, invalid and unsustainable in the eyes of law.

10.3. This Hon'ble Court may kindly be pleased to issue an appropriate writ/order/direction declaring the petitioner to be fit for the appointment to the post of data entry operator and further declaring the petitioner be entitled for the all consequential benefits of services.

10.4. This Hon'ble Court may kindly be pleased to issue an appropriate writ/order/direction directing the respondent authorities to treat the petitioner as appointed and be in the services of the respondent department since the date he was firstly appointed as data entry operator in compliance of appointment order dated 13.02.2014.

10.5. This Hon'ble Court may kindly be pleased to pass any other order which may deem fit and proper under the facts and circumstances."

3. Learned counsel for the petitioner submits that the impugned order dated

13.02.2014 and proceeding thereof passed and carried by respondent No. 4 are

unreasonable, and arbitrary condition imposed in the appointment order of the

petitioner dated 21.01.2014 whereby the services of the petitioner as data entry

operator has been terminated. The action of the respondent authorities is also

against the principle of natural justice. He next submits that respondent No. 4

acted against the prescribed procedure laid down by respondent No. 2 vide

Annexure-P/1. The impugned order and condition imposed in the appointment

order of the petitioner and the entire action of respondent No. 4 are not

sustainable in the eyes of law for want of jurisdiction for the reasons that the

petitioner having appointed as data entry operator attained the status of an

employee in the respondent department and no order adversely affecting his

appointment could have been passed without affording him an opportunity of

hearing as the principle of natural justice is the basic principle even in the

administrative domain and no order whatsoever could have been passed which

was against the interest of the petitioner. He also submits that the manner in

which the order for rechecking/revaluing the answer sheets has been made by

respondent No. 4 was not in accordance with the prescribed procedure and in fact

respondent No. 4 exceeded his jurisdiction as he has not been vested with the

power of ordering rechecking/revaluing of answer sheets, thus the entire exercise

of cancelling the appointment of the petitioner is illegal for want of jurisdiction. He

next submits that the answer sheets for rechecking were sent to the same

educational institute which had earlier checked the answer sheets of the

candidates and given marks to them and the second time when the said institute

re-checked the answer sheets, gave different marks to the candidates which is not

permissible under the law as the rechecking of the answer sheets should have

been done by the other institution so that the answer sheets could be rechecked

with justified and an apposite approach to avoid the prejudice and bias to the

candidates. He placed reliance on the decision of this Court in the matter of

Roshan Prasad Sidar Vs. State of Chhattisgarh And Ors. reported in

MANU/CG/0019/2010.

4. Learned counsel for respondents No. 1 to 4 submits that upon receiving

the complaint and the allegations levelled therein, the respondent authorities

requested the institute for revaluation of the answer sheets of the four qualified

candidates. Upon the request of the respondent authorities, the revaluation of the

answer sheets of the qualified candidates was done and the results of the same

were sent by the Principal, Polytechnic College vide its letter dated 31.02.2014

wherein the marks of Mahendra Singh were increased and therefore he secured

top position in the merit and the petitioner stood second in the merit (Annexure-R/

2). He next submits that the appointment of the petitioner was on probation for a

period of 2 years and as per the condition of the appointment order of the

petitioner, it can be cancelled at any point of time, if there is any illegality or

arbitrariness in the appointment and therefore vide order dated 13.02.2014 the

appointment of the petitioner on the post of data entry operator was cancelled. He

placed reliance on the decision of Hon'ble the Apex Court in the matters of

Municipal Council, Samrala Vs. Sukhwinder Kaur, reported in AIR 2006 SC

2905 and Dr. J. Shashidhara Prasad Vs. Governor of Karnataka and another,

reported in AIR 1999 SC 849.

5. Learned counsel for the respondent No. 6 has also supported the

contention of the respondent authorities.

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

7. Learned counsel for the petitioner submits that as per the advertisement

(Annexure-P/1) some conditions are imposed which reads as under:-

7- p;u lwph dk vuqeksnu % &----------------

?k-& vizekf.kr f'kdk;rksa vFkok tuppkZ ds vk/kkj ij HkrhZ fujLr ugha dh tk ldsxhA

M-& p;u lwph ;k rks iwjh rjg vuqeksfnr dh tk;sxh vFkok iwjh rjg fujLr dh tk;sxhA oulaj{kd

iqu% ewY;kadu vFkok iqu% ijh{kk dk vkns'k ugha ns ldsaxsA vuqeksnu ds iwoZ oulaj{kd lHkh vko';d

fjdkMZ ijh{k.k gsrq cqyk ldsaxsA

It is also submitted by the counsel for the petitioner that the petitioner joined as

data entry operator, therefore, he was an employee of the respondent authorities

and without any show cause notice his services could not be terminated, it is

against the principle of natural justice.

Learned counsel for the respondent submits that as per the joining order dated

21.01.2014 there was a condition No. 9 which reads as under:-

fu;qfDr dh 'krsZa fuEukuqlkj gSa--------

9- f'kdk;r gksus ds dkj.k mRrj iqfLrdk dk iqu% ewY;kadu djk;k tk jgk gSA tkap ds mijkar

ofj;rk esa fHkUurk ik;s tkus ij fu;qfDr Loeso lekIr le>h tkosxhA

This is an admitted fact that the petitioner had joined his duty as per the order

8. In the matter of Dr. J. Shashidhar Prasad (Supra) Hon'ble the Apex Court

in para 17 has held as under:-

17. The next decision referred to is the judgment in C.L. Kappor v. Jagmohan, (1981) 1 SCR 746 : (AIR 1981 SC 136). Reliance was placed on the following passage in the judgment (at p. 147 of AIR):

"In our view the principle of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs."

The aforesaid passage itself shows that the Court will refuse to issue as writ which will be futile even after there had been failure to observe the principle of natural justice. On the facts of the present case, it is not disputed that the Chancellor has appointed the second respondent as Vice Chancellor after cancelling the appointment of the appellant. It is also not disputed that the criminal case was pending against the appellant on the date on which the order of cancellation of the appellant was made.

9. Also in the matter of Municiapl Council, Samrala (Supra) Hon'ble the

Apex Court in para 7 has held as under:-

"7. The respondent, within a span of about 18 months, was appointed thrice and disengaged thrice. As noticed hereinbefore, she

was appointed on a contractual basis. The appointments were temporary ones. She was aware that her services could be terminated without notice. She accepted the terms and conditions of the said offers of appointments without any demur."

10. Reverting to the fact of this case, it is clear from the order dated

21.01.2014 (Annexure-P/6) there was a condition that the revaluation of answer

sheets is going on and if any variation is found shown in the merit list, the order of

appointment shall automatically stand cancelled. The petitioner accepted the

terms and conditions of the said order and joined as a data entry operator without

any demur. After the revaluation of the answer sheets, another person secured

the first rank and the service of the petitioner was terminated. Thus, there is no

illegality observed in the impugned order.

11. Accordingly, looking to the facts and circumstances of the case and the

principles of law laid down by the Hon'ble Apex Court in the subject matter, this

petition is devoid of any merit and is hereby dismissed.

Sd/-

(Rajani Dubey) JUDGE

H.L. Sahu