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Madhya Pradesh High Court · body

2011 DIGILAW 1325 (MP)

Anil Kumar Chourasiya v. State of M. P.

2011-11-22

RAJENDRA MENON

body2011
JUDGMENT Hon'ble Shri Justice Rajendra Menon 1. As a common question of law & facts are involved in all these petitions and challenge is made to orders identical in nature passed by the Chief Executive Officer Janpad Panchayat, Lakhnadon on 26.9.2007, terminating the services of the employees in the light of certain directions issued by the Collector, Seoni on 21.9.2007 by which the services of the petitioners on the post of Samvida Shala Shikshak GradeII and Samvida Shala Shikshak Grade-III are terminated, all these petitions are being heard and decided by this common order. 2. For the sake of convenience, pleadings and documents available in the records of W.P.No.17416/2007 are being referred to : 3. Petitioners, in each of the cases, applied and participated in the process of selection conducted in Janpad Panchayat Lakhnadon for appointment on the post of Samvida Shala Shikshak Grade-II and Grade-III. After the selection process was completed, the petitioners were appointed as Samvida Shala Shikshak Grade-II on a consolidated salary of Rs.3500/per month or as Samvida Shala Shikshak Grade-III on a consolidated salary of Rs.2500/per month. AnnexureP1 is the copy of the appointment order passed. After the petitioners were appointed in the year 2006 and after they were so working, it seems that the Additional Collector received some complaints and, therefore, a notice was issued to some of the petitioners and, thereafter, the Additional Collector directed the Chief Executive Officer to conduct an enquiry into the matter. An enquiry was conducted and on the basis of the enquiry report received, the Collector vide order dated 21.9.2007 directed for cancelling the entire selection and accordingly the impugned action is taken for terminating the services of the petitioners. 4. It is the case of the petitioners that they have not been individually heard and individual cases of each of the petitioners have not been scrutinized and without conducting the exercise of weeding out, in an illegal manner, the entire selection has been cancelled. According to the petitioners, the Collector was duty bound to issue notice to individual employees and examine the individual case on the basis of enquiry report as to whether the irregularity and illegality is committed in appointment of each of the employee. Merely on the basis of a general finding recorded in the matter, in an illegal manner, action for cancellation of the entire selection is taken. Merely on the basis of a general finding recorded in the matter, in an illegal manner, action for cancellation of the entire selection is taken. Accordingly, contending that without scrutinizing individual case of the employees, the action of cancelling of the entire selection is illegal, petitioners seek for interference into the matter. 5. Placing reliance on a judgment rendered in the case of Smt. Gunjita Gupta & others Vs. State of M.P. and others by a Division Bench of this Court in Writ Appeal No. 1119/2008, decided by the Division bench on 4.2.2009, learned counsel for the petitioners prays for interference into the matter. 6. Shri Sanjay Dwivedi, learned counsel for the State Government and Shri Deepak Awasthi, learned counsel for the Janpad Panchayat submit that in this case, as there has been a large scale of irregularity in the matter, the entire selection is cancelled and in doing so, it is stated that the respondents have not committed any error. Inviting my attention to certain principles laid down by the Supreme Court in the case of Krishan Yadav Vs. State of Haryana 1994 (4) SCC 165 , Shri Sanjay Dwivedi and Shri Deepak Awasthi, learned counsels submit that when there are large scale of irregularity in the selection, the entire selection is cancelled and it is not necessary to give notice to the individual employee. Interalia contending that in the enquiry conducted, taking note of the large scale irregularity conducted, the competent authority thought it appropriate to cancel the entire selection and, therefore, it is stated that the respondents have not committed any error. Accordingly, the Additional Collector, Jabalpur has looked into the matter and upheld the order of Chief Executive Officer. The order of Additional Collector dated 21.9.2007 is passed after giving notice to the petitioners and finding a large scale of irregularity committed in the selection, the impugned action is taken and, therefore, these petitions filed before this Court are not tenable and the same have to be dismissed. 7. The order of Additional Collector dated 21.9.2007 is passed after giving notice to the petitioners and finding a large scale of irregularity committed in the selection, the impugned action is taken and, therefore, these petitions filed before this Court are not tenable and the same have to be dismissed. 7. Having heard learned counsel for the parties and on a perusal of the records, it is clear that even though the individual notices were issued to the petitioners, but without conducting the process of weeding out of the case as canvassed by learned counsel for the petitioners, action has been taken on the basis of a common enquiry conducted in which large scale of irregularity was found by the competent authority. Even though, in the judgment relied upon by Shri Sanjay Dwivedi and Shri Deepak Awasthi i.e. in the case of Krishan Yadav (Supra), the principle laid down is that individual notice and hearing is not needed when there is large scale of irregularity in the matter. Having followed the aforesaid judgment, this Court had dismissed various cases i.e. by a common order passed in W.P.No.7299/2008(s) Kanchan Upadhyay and others on 23rd of September, 2008. In the case of Kanchan Upadhya also, the matter pertained to appointment of Shiksha Karmis in Janpad Panchayat, Shahpura and in the said case also, finding large scale irregularity committed, after following the principles laid down in the case of Krishan Yadav (Supra), the entire selection was cacelled. However, on a writ appeal being filed in the case of Smt. Gunjita Gupta (Supra) i.e. Writ Appeal No.1119/2008, the Division Bench after considering the entire principles of Law in its order passed on 4.2.2009 has held that when appointment of individual, which has been made, is terminated, the individual is required to be heard and the process of weeding out of cases has to be conducted. It was held that action taken without undertaking the weeding out process is unsustainable and, therefore, after taking note of various principles and under similar circumstances, the direction given by the Division Bench of this Court in the case of Gunjita Gupta in Para13 and 14 reads as under : 13. For the aforesaid reasons and keeping in view the principle of natural justice and the facts and circumstances of the present case, the order passed by the Collector deserves to be affirmed. For the aforesaid reasons and keeping in view the principle of natural justice and the facts and circumstances of the present case, the order passed by the Collector deserves to be affirmed. In our considered opinion, the reasoning ascribed by the learned single Judge are not in accord with the factual base and the conceptual principle of weeding out. Accordingly, we set aside the order passed by the Collector. The persons against whom by applying the principles of weeding out, it is found that their selection is proper, they will continue to remain in service and, therefore, their orders of termination are quashed. We further direct that the Collector, Jabalpur shall afford an opportunity of hearing to all such persons whose appointment are liable to be annulled on the basis of the report submitted by the Chief Executive Officer. The Collector after considering the representations so received from the employees shall pass a final and speaking order. The whole exercise shall be carried out within a period of three months from the date of receipt of order passed today. As we have set aside the order passed by the learned Single Judge, it is needless to say that selectees, against whom no report was submitted by the CEO, their services should not be terminated and they will be allowed to continue in service. However, it is also directed that the persons, in the order of the Collector dated 6.5.2008, who were not selected but were entitled to be appointed, shall also be appointed. 14. In the result, the present appeals are allowed. In the facts and circumstances of the case, there shall be no order as to costs. (Emphasis Supplied) 8. Once under similar circumstances, a Division Bench has laid down the principle, it is not appropriate for this Court to take a different view in the matter now, when the factual scenario that was existing in the case of Kanchan Upadhyay (Supra) is available in these present cases also. 9. According to Shri Deepak Awasthi, learned counsel, only 1020 petitioners are working and the remaining petitioners are not working. Be it as it may be, in the light of the direction issued by the Division Bench under similar circumstances in Writ Appeal No.1119/2008, the petitions are required to be allowed. 10. Accordingly, the petitions are allowed. 9. According to Shri Deepak Awasthi, learned counsel, only 1020 petitioners are working and the remaining petitioners are not working. Be it as it may be, in the light of the direction issued by the Division Bench under similar circumstances in Writ Appeal No.1119/2008, the petitions are required to be allowed. 10. Accordingly, the petitions are allowed. The matter is remanded back to the Collector Seoni, the Collector or on his direction, the Additional Collector Seoni, they shall afford an opportunity of hearing to each of the petitioners on the basis of the enquiry report available. A copy of the enquiry report shall be supplied to individual petitioners and the Collector/ Additional Collector Seoni shall pass a final order based on the case of each of the petitioners after considering their defence and explanation adduced during the course of the day. 11. The entire exercise in this regard be concluded within a period of three months from the date of receipt of certified copy of this order. Based on the aforesaid, a final decision shall be taken by the Collector with regard to continuation, appointment or termination of the services of the petitioners. 12. Till the aforesaid exercise is not completed, statusquo in the matter as is existing today, shall be maintained. 13. With the aforesaid, all the writ petitions are allowed and disposed of. Certified Copy as per rules.