Rekha Mishra W/o Shri Prabhat Kumar Mishra v. State of Chhattisgarh
2023-04-19
RAKESH MOHAN PANDEY
body2023
DigiLaw.ai
ORDER : 1. In this bunch of petitions, the issue involved is similar and therefore, these petitions are being disposed of by this common order. 2. The petitioners have sought relief of regularization and absorption as they have completed more than 15 years of service in the department and according to policy decision taken by the State, their services should have been absorbed in the year 2018 itself. 3. Shri Rajeev Shrivastava, learned Senior Counsel who is advancing the lead arguments, would submit that earlier writ petitions were filed seeking a direction to the respondents to consider the matter of the petitioners for regularization on the post of Assistant Teacher (Panchayat) with effect from 28.11.2009, as on that date, most of the petitioners had completed two years of service from the initial date of appointment. This court vide order dated 11.12.2018 directed respondent No. 7/Chief Executive Officer, Janpad Panchayat to consider claims of the petitioners and to pass appropriate order within a period of four months. It is further submitted by learned Senior Counsel that a Committee was constituted by the Collector on 8.8.2018, but no decision was taken by the department, therefore, a revision was preferred before the Commissioner, Sarguja Division, Ambikapur, which was registered as Panchayat Revision No. 162/B-121/2018-19 and vide order dated 18.5.2020, the revision petition preferred by the petitioners was allowed whereby the order passed by the Collector dated 8.8.2018 was quashed and the CEO, Janpad Panchayat was directed to consider the case of the petitioners for absorption and regularization of the services. He would further submit that the order of the Commissioner was partly complied with and the services of the petitioners were regularized vide order dated 26.5.2020. A letter was written by the Director Panchayat dated 27.1.2021 directing the Chief Executive Officer of District Panchayat not to comply with the order passed by the Commissioner, Division Sarguja and also directing the authorities to challenge the order passed by the Commissioner before an appropriate forum. District Panchayat Sarguja vide order dated 8.2.2021 cancelled the order of regularization passed in favour of the petitioners in pursuance of the order passed by the Director Panchayat. Learned Senior Counsel would submit that a judicial order was passed by the Commissioner, whereas the effect and operation of the same by the Director Panchayat by an administrative order, has been stayed which is per se illegal.
Learned Senior Counsel would submit that a judicial order was passed by the Commissioner, whereas the effect and operation of the same by the Director Panchayat by an administrative order, has been stayed which is per se illegal. He would further submit that the petitioners are eligible for regularization and absorption in pursuance of the circulars issued by the State Government. 4. On the other hand, learned counsel for the State and counsel for the respondents would submit that there was a direction in WP (S) No. 8095 of 2018 to enquire into the matter, therefore, an order was passed by the Collector to constitute a Committee. They would further submit that the Commissioner bypassing the order passed by the High Court, directed the authorities to pass an order of regularization and absorption, therefore, the Director Panchayat rightly restrained the authorities from taking any decision with regard to absorption and regularization. 5. I have heard learned counsel for the parties and perused the documents. 6. In WP (S) No. 8095 of 2018 vide order dated 11.12.2018, this Court directed the authorities to consider the case of the petitioners for regularization and absorption. There was no direction to constitute any Committee or enquire into the matter, therefore, there was no need for the Collector to constitute any Committee. The petitioners made representation before the CEO, Janpad Panchayat and in turn, he took a decision to regularize services of the petitioners subject to verification of credentials of the petitioners. 7. The petitioners approached the Janpad Panchayat raising their grievances but no action was taken and even the Committee constituted by the Collector did not give any heed, therefore, the petitioners approached the Commissioner, who passed an order on 18.5.2020. The Commissioner while passing the order dated 18.5.2020, examined and verified the credentials of all the petitioners and this fact is evident from the order passed by the Commissioner itself. Thereafter, when the Janpad Panchayat sought guidance from Director Panchayat, the Director Panchayat restrained the authorities from taking any decision on issue of regularization and absorption of the petitioners and subsequently, the CEO District Panchayat cancelled the order of regularization passed by the Janpad Panchayat in favour of the petitioners. 8.
Thereafter, when the Janpad Panchayat sought guidance from Director Panchayat, the Director Panchayat restrained the authorities from taking any decision on issue of regularization and absorption of the petitioners and subsequently, the CEO District Panchayat cancelled the order of regularization passed by the Janpad Panchayat in favour of the petitioners. 8. A judicial order was passed by the Commissioner in the revision, therefore, the Director Panchayat had no authority to deviate from the order restraining the authorities from acting or complying with the order of the Commissioner. The authorities were granted liberty to prefer an appeal before the appropriate authority against the order passed by the Commissioner which has already been complied with and as per instructions, learned counsel for the State would submit that no interim order has been granted by the State in revision preferred by the CEO, District Panchayat Sarguja, which is pending before the State Government. 9. It is well settled principle of law that the judicial order cannot be modified or set aside by an administrative order which was held by the Hon’ble Supreme Court in the case of Laxman Purshottam Pimputkar vs. State of Bombay and Others, AIR 1964 SC 436 in paragraph 11, which reads as under: “11. Since the order made by the Collector under S. 12 is not an administrative order but a quasi-Judicial order it can be rectified or modified or set aside by the Commissioner in appeal or by the State Government in revision under S. 79. It is not a kind of order which can be reached under S. 74. Section 79 provides that the State Government may call for and examine the record of the proceedings of any officer for the purpose of satisfying itself as to the legality or propriety of any order passed and may reverse or modify the order as it seem fit or if it seems necessary may order a new enquiry. Now, in the year 1944 when the plaintiff moved the State Government by petition it returned the petition to him on November 28, 1944, with the remark that he should apply to the Collector of Thana in the first instance and then if necessary to the Commissioner, Northern Division. The plaintiff was also informed that if he was not satisfied with the orders passed, he may approach the Government, presumably by preferring an application for revision.
The plaintiff was also informed that if he was not satisfied with the orders passed, he may approach the Government, presumably by preferring an application for revision. At the foot of the letter R. 11 of the Petition Rules was set out. The relevant portion of which runs thus: “Government, however, will not receive a Petition on any matter, unless it shall appear that the petitioner has already applied to the Chief Local Authority, and where such exists, to the controlling authority. The petitions to the chief local and to the controlling authorities or copies of them and the answers to or orders upon those petitions in original, or copies of them, must be annexed to all petitions addressed to Government........” The plaintiff sent a reply to the aforesaid letter of the Government on December 15, 1944, and enclosed with it a copy of the application made by him to the Collector, Thana, together with his order of March 20, 1925 and said: “In 1924 a revision application to the Collector of Thana was preferred. The Collector in his reply informed us on the authority of the Commissioner's decision that our case could not be considered (Order No. W.T.N. No. 5 of 1925-Copy enclosed Ex.7). It is against this order that the present appeal is being submitted. As the Collector has informed us on the authority of the Commissioner we think it is no use approaching the Commissioner again against the very decision already confirmed by him.” I, therefore, approach Government with a request that a full and proper justice be done to my case which both on the question of facts and of law deserves careful consideration. With reference to paragraph 2 of your letter it may be mentioned that we have already approached the Collector of Thana and copy of his order was attached to my previous petition also. It is being resubmitted for your kind considerations.” After receiving this letter the Government caused a thorough enquiry to be made by the revenue officials in the presence of the parties and after giving them opportunity to adduce such evidence as they wished to. The proceedings of the subordinate officers, along with their reports, were in due course submitted to the Government and it was on the basis of this report that the Government made an order in October, 1946, restoring possession of the Watan lands to the plaintiff.
The proceedings of the subordinate officers, along with their reports, were in due course submitted to the Government and it was on the basis of this report that the Government made an order in October, 1946, restoring possession of the Watan lands to the plaintiff. It is true that the order does not say that it was passed under S. 12(a) of the Act read with S. 79 thereof, but since both these provisions taken together give power to the Government to make an order of the kind Which it - made in October, 1946, its order must be held to have been made under those provisions. When an authority exercises its revisional powers it necessarily acts in a judicial or quasi-judicial capacity. Therefore, the Government's order of October, 1946, must be deemed to be a judicial or a quasi-judicial order. Such an order cannot be set aside or revised or modified just as an administrative order can be under S. 74. Finality attaches to the Government's order under S. 79 and in the absence of any express provision empowering it to review the order we are clear that the subsequent order made by the Government on May 2, 1947 is ultra-vires and beyond its jurisdiction. We must, however, notice the contention raised, though faintly, by Mr. Bindra that the Government could not be deemed to have dealt with the matter in a quasi-judicial capacity under S. 79 because the order revised by it was more than 20 years old. It is sufficient to say that no period of limitation is specified in the Act for preferring an application for revision. Of course, normally the Government would not interfere unless moved within reasonable time. But, what should be considered as a reasonable time in a particular case would be a matter entirely for the Government to consider. Apparently in this case the Government thought that it had strong reasons for interfering even after a long lapse of time and that is why it interfered.” 10. Coming to the facts of the case in the light of the judgment passed by the Hon’ble Supreme Court, this Court has no hesitation in holding that the Director Panchayat had no authority to modify or set aside the order passed by the Commissioner. 11. Consequently, the order passed by the Director Panchayat (Annexure-P/1) dated 27.1.2021 is hereby set aside.
Coming to the facts of the case in the light of the judgment passed by the Hon’ble Supreme Court, this Court has no hesitation in holding that the Director Panchayat had no authority to modify or set aside the order passed by the Commissioner. 11. Consequently, the order passed by the Director Panchayat (Annexure-P/1) dated 27.1.2021 is hereby set aside. Respondents are directed to comply with the orders/ directions issued by the Commissioner, Sarguja Division, Ambikapur in Revision No. 162/ B-121/2018-19. The respondents are also at liberty to pursue their appeal pending before the State Government. 12. With the aforesaid observations, these petitions are disposed of.