SMT. LATA •OBR v. RSVS

SMT. LATA •OBR Wo Shrl Pul Slnqh aged abbut 3 9 year s ,

10. SI-iT .USHA SH&RP& </o Shr^. AshoK Sharrpa aged abo'at 38 years,

11. 3WP. SHASHI AGPAT-BIi W/o Snrl Satya Kamar aged about 42 years. Itetifcloners 8 to 11 ' ^gaabaai^JfcA^ SlQCK - SA3-A Dlstt. DL'RG (M.P.) . i7r- VSRSVS RespondentS ^, 1. SAL VIKAS PARIYOJI1A ADHIX?SAI Vlllage - DAURDI (B.D.) Q.istfc. DURG (M.P.) . ^, BAL V2KZ.S PARIVOJN& ADHIKARI Vlllage - SAJA (B.D.) Distt. Dcas (H.P.) Qresident / Shairnan Gensral A3m.tnistration aandina GonBnJ-ttse^ 033TSieT FAKGHAY?>T DURG DuaG T&H. & DT3T7. D17RG (M, .,5-. n _____a- .-^ii- ~3?T.HT^ ^.ic-l.ffM -^lHcTMl conto...3

4. CHIEF EXSCUT3?ra OST-IGEa Dlstrlc't Panchayat Darg, Durg Tah. & Dlstt. Durg (B.P, 5» COMMISSSONER Dlrect.cSrate of i'bman and Siild Etevelopiasnt dhya Bradesh SHOPftL (M.P.)

6. STATE OP HaDHy& PSAOESH ^ '- Secretary libiaan Aid Chlld ^2^2i^££ Vallabh Bhawa SHOPA& (M.P.)

7. Sffi. KA ,A BACMEL Bresiclent District Panchayat D'jsg Tah. & Dj.stt. &UH3 (H.P.) SSTSSDN UNQBR J"^T :B3^BS os* 33'roa. 226/227 OS- THE OSSSTlTUnGN irtlculars of the pet.itioners; As csivsn in the Cao.se tlele

2. Ebrtlculare. of t'ne respondenfcs s- As aiven In the cause fcitle o 337 o '/r\\T^ •SY^O\S\V ^- ^ jfa. <! "_£?•":J- '< ..;f!B! % ^ii^..*" ;litei:is ,<lt:A::y >!:" :" AF/^

3.SA f- mOH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 4274 of 2000 PETITIONERS : Smt. Rukhmani Suryawanshi & Others. VERSUS RESPONDENTS : Bal Vikas Pariyojna Adhikari & Others. Post for pronoimcement ofjudgment on .•2.3..day ofOctober, 2009. •>». Sd/- Satish K. Agnihotri Judge HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 4274 of 2000 PETITIONERS : Smt. Rukhmani Suryawanshi & Others. VERSUS RESPONDENTS : Bal Vikas Pariyojna Adhikari & Others. PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J. Present: Shri V.G.Tamaskar, Advocate for the petitiQners. Shri Alok Bakshi, Govemment Advocate for the State/respondent No. 1,2, 5 and6. JUDGMENT (Passed on ....JZy..'. day of October, 2009) \ By this petition, the petitioners seek a writ of mandamus, directing the respondent No. 4 to implemient the resolution No. 8 dated 22 April, 1999 (Annexure P/6) passed by the General Administration Standing Committee (for short 'the Committee') ofthe District Panchayat, Durg, and to grant two promotional opportunities to the petitioners, who are the Angan Badi workers. The facts, in nutshell, are that the petitioner No. 1, 4, 5, 6, and 7 were appointed as Angan Badi Workers by the Project Officer, Integrated Child Development Project, Daundi, District Durg, vide order dated 31 July, 1984 (Annexure P/l) and the petitioner No. 8, 9 and 10 were appointed by the Project Officer, Integrated Child Development Project, Saja, District Durg, vide order dated 2 November, 1983 (Annexure P/2). Similarly, 1(> 1 '^ ^'^ si%i/. •i» •y'as-'- ^s- ^^'~ .^s7 "1^3S5S§^: petitioner No. 2, 3 and 11 were also appointed on the post of Angan Badi Worker. The Additional Director, Directorate, Women and Child Welfare, Madhya Pradesh, Bhopal, instructed the Chief Executive Officer, District Panchayat Durg, vide communication dated 30 June, 1998 (Annexure P/3) that the reservation in case of appointment of the Supervisors from Angan Badi Workers should be done at Division leve). Presently, 50% ofthe vacant seats in the District should be done in accordance with the reservation roster. A seniority list (Annexure P/4) of all the Angan Badi Workers under the District Panchayat, Durg, was prepared and published. Thereafter, note-sheet No. 33 (Annexure P/5) was drawn wherein tbe name of the petitioners find place who were proposed to be promoted on the post of Supervisors. A meeting of the Committee of District Panchayat, Durg was held on 22 April, 1999 (Armexure P/6). In the resolution No. 8 of the agenda, it was resolved to promote 12 Angan Badi Workers listed in the note-sheet (Annexure P/5) on the post of Supervisors. All the petitioners, i.e. petitioner No. 1 to 11 found place at serial no. 10, 5, 6, 7, 8, 11, 9, 2, 3, 4 and 1 respectively.

3. Shri V.G.Tamaskar, leamed counsel appearing for the petitioners would submit that the name ofthe petitioners have been approved by the Coiimiittee of the District Panchayat, Durg for appointment and as such, the petitioners have acquired right to appointment on the post ofSupervisors. Shri Tamaskar would further contend that in similar circumstances, the District Panchayat, Women and Child Development, Khargon, (Madhya Pradesh) have appointed Angan Badi Workers as Class III Supervisors (Annexure P/7). Non-promotion of the petitioners, despite resolution passed by the District Panehayat, Durg, is arbitrary and imreasonable. Thus, this petition seeking ..^('"> 1 ?^<'' direction to the respondent No. 4 to implement the recommendation of the Committee dated 22 April, 1999 (Annexure P/6). It was further urged that a direction may be issued to the Govemment to provide for minimum two promotions to the Angan Badi Workers. In support of his contention, Shri Tamaskar would rely on a decision in Raghunath Prasad Singh v. Secretary, rs.i^ Home (Police) Department, Government ofBihar and Others . Shri Alok Bakshi, leamed Government Advocate appearing for State/respondents 1, 2, 5 and 6 would submit that the post of Supervisors in District Panchayats have been declared as dying cadre on 13 May, 1999 (Annexure R71) before creation of the present State of Chhattisgarh and as such, no appointment could be made thereafter. Even otherwise, petitioners have no legal to be appointed on the post and the recommendation made by the Committee is advisory in nature and is not binding upon the appointing authority. I have heard leamed counsel appearing for the parties, pemsed the pleadings and documents appended thereto. Indisputably, the petitioners were appointed on the post of Angan Badi Workers by respective orders, as aforestated (Annexure P/l and P/2), on temporary basis. The order dated 30 June, 1998 (Annexure P/3) does not provide for promotion ofthe Angan Badi Workers on the post of Supervisors but for having reservation at division level in case of promotion from Angan Badi Workers on the post of Supervisors. It is also not in dispute that the Committee ofDistrict Panchayat, Durg in its meeting dated 22 April, 1999, approved the name of the petitioners' alongwith others for appointment on the post of Supervisors. Thereafter, on 13 May, 1999 (Annexure R/l), the AIR 1988 SC 1033 p" / post of Supervisors came to an end as the same was declared as dying cadre and as such, no appointment could be made. Reliance of the petitioners that in District Panchayat, Khargon, Angan Badi Workers were appointed as class III Supervisors on 15 June, 1999 may not be relevant as it depends on the Chief Executive Officer. If the Chief Executive Officer is not aware ofthe memo dated 13 May, 1999 and has made certain appointments, the present petitioners cannot claim appointment on that basis. The contention of Shri Tamaskar that the action of the respondents is violative of Article 14 of the Constitution of India being arbitrary and unreasonable is noted to be fejected. Even otherwise, petitioners have not acquired any right to appointment as the appointment was to be made by the Chief Executive Officer of the District Panchayat, Durg on the recommendation made by the Committee of the District Panchayat, Durg. It is for the ChiefExecutive Officer to examine all the facts of the case and the recommendations and pass appropriate orders for appomtment. In respect ofthe equality under provisions ofArticle 14 ofthe Constitution of India, the Supreme Court observed that "it is now well settled that Article 14 of the Constitution of India carries with it a positive effect. Equality clause cannot apply in a case where it arises out of illegality". (See: General Manager, Uttaranchal Jal Sansthan v. LaxmiDevi & Others). Rule 3(f) and (i) of the Chhattisgarh Panchayat (Powers and Functions of Chief Executive Officer) Rules, 1995 (for short, 'the Rules, 1995'), reads as under: (2009) 7 SCC 205 IIB'i i "3. Save as otherwise expressly provided by or under the Act, the executive power for the purpose of carrying out provisions of the Act shall vest in the Chief Executive Officer, who- (f) shall take action to implement the resolutions of the Panchayat; (i) shall report within three days from the date of meeting of Panchayat or Standing Committee all such cases to the prescribed officer where his opinion any act or execution of any order or resolution of Panchayat or of the President or the Chairperson of any standing committee is not in accordance with the provisions of the Act or the rules framed thereunder or any directions or instmctions issued by the State Govemment under the Act."

10. Rule 5 ofthe Rules, 1995 prescribes that "the Chief Executive Officer shall also exercise all such powers and perform sueh other functions and duties as may be delegated to him by Panchayat or assigned by the State Government.

11. Rule 6 ofthe Rules, 1995 provides that "any order of the Panchayat shall only be valid when it is issued under the seal and signature of the Chief Executive Officer".

12. On perusal ofRule 3(f), Rule 5 and 6 offhe Rules, 1995 it is clear that the Chief Executive Officer shall examine whether a recommendation is in accordance with the provisions of the Act and the Rules thereunder or under the directions or instructions issued by the State Govemment under the Act. In the facts of the case, the instructions dated 13 ' May, 1999 which was provided not to pass the order of appointment and thereafter post elsewhere as the post of Supervisor and Assistant Women and Child Welfare Extension Officer, were declared as dying cadre.

13. In Sethi Auto Service Station & another v. Delhi Development Authority & Others , while considering the effect of the recommendation, the Supreme Court observed that "we find it difficult to hold that the recommendation of (2009) 1 SCC 180 —^-—•^^ the Technical Committee of DDA fmctified into an order conferring legal right upon the appellants".

14. In Union of India v. Arun Jyoti Kundu & Others , the Supreme Court observed as under: "16...unl6ss the Govemment recommendation to merge the cadres, fhe court cannot proceed on the basis of the recommendation alone or Govemment direct recommendation." accepted accept

15. In the case of Shankarsan Dash v. Union of India , it was held by the Supreme Court that "it is not correct to say that ifa number ofvacancies are notified for appointment and adequate number ofcandidates are not found frt, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied."

16. It was subsequently followed in Ludhiana Central Co-operative Bank Ltd. v. Amrik Singh and others wherein it was held by the Supreme Court that "even otherwise, it is well settled by now that a person whose name is said to find place in a select panel has no vested right to get appointed to the post in H BB :IISi'!H spite ofvacancies existing."

17. Further, in Union oflndia and others v. Kali Dass Batish and another Supreme Court held that "mere inclusion of a candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement ofa non-existing right."

18. This Courtin the matter of Rajesh Kumar Dewangan v. The Life Insurance Corporation of India & Others held that "the petitioner does not acquire an