Ku. Thanwaria Kaivart an.d ofhers v. State of Chhatdsgarh and ofhers

Judgment

12. Ku. Thaawann Kaivart, aged about 48 years, daughter of Shri Sawal Kaivart, by occupation - Superintendaat BaUka Ashrani SaineU, distodct- Baster (M,P.). R.V. Rao, aged about 57 years, Son of Shri R. Rammanya, by occupation Accountant Mata Rukinani Seva Saasfhaa, Dirmrapal, Distdct Bastar (C.G.). Snit. Kamlesh, aged about 45 years, daughter of Laxman Siagh, by occupation Teacher Kaaya Ashram, Mutaiipal, District Bastar (C.G.). Basaat Kumar Saraf, aged about 48 years, Son of Bhuwanlal Saraf, by occupation Teacher Kanya Ashrani Orchha, District Bastar (C.G.). Siat, Rajeshwad Baifhara, aged about 48 years, Wife ofShn Soiaaai Babu, by occupation Assistant Teacher, Kaaya Ashram Chhattisgarh, District Bastar (C.G.). Smt Dhanlaxmi Kiirup, Wife ofShri T.V, Mohan, by occupation Assistaat Teacher Kanya Ashrain Bastar, Distodct Bastar (C.G.). Om F>rakash Ogle, Son of Shri Malhar Rao, aged about 41 years, by occupation Assistaat Teacher, Kanya Ashraai DhurU Dantewada, Distaict Dantewada (C.G.). Rajendra Prasad Sah, aged about 37 years, Son ofShri Dashrath Prasad Sah, by occupation Teacher ia Balak Ashram DhurU, Daatewada, Distdct Bastar (C,G.). Siat Saraswati Sao, aged about 48 years, Wife ofShri D.K. Sao, by occupation Superintendent Kanya Ashrain Orchha, District Bastar (C,G,)» Ku. Savitd Pandey, ^ed about 45 years, Daughter oflate Shri B,J, Pao^dey, Teacher m Mahataaia Gandhi Kaaya Ashram Chhatdsgarh, Distdct Bastar(C,G.). Sint. Kainal Jam, aged about 49 years, Wife ofShri Ramesh Jain, by occupation Teacher Kanya Ashram. Cheiurgaon, District Bastar (C.G,). AnU Basaat Rao Dhote, aged about 43 years, Son of Shri Basant Rao, by occupation Teacher in Kanya Ashram -^ ^- •^32)

23. 24,

Dhanora, District Bastar (C.G.). Smt. Satwaati Bhamra, aged about 50 years, Wife of Shri Gurudeo Bharma, by occupation Balwadi Teacher Kanya Ashram Charama, Distnct Bastar (C.G.). Ku. Malti Yadav, aged about 47 years, Daughter of Shri R.C. Yadav, Superintendent Kaaya Ashrani Mutanpal, District Bastar (C.G.). Shiv Chaadra Sah, aged about 36 years, Son ofShri Ghasai Sah Saachalak, Kanya Ashram Dhimrapal, District Bastar (C.G.). Smt. Kasturi Soni, aged about 48 years, Wife ofShri Basant Saraf, by occupation Assistant Teacher Kaaya Ashram Orchha, District Bastar (C.G.). Ku. Laxmi Uddey, aged about 30 years, Daughter of Shri Jogiram Uddey, by occupation Teacher, KaayaAshram Dhanora, District Daatewada (C.G.). Kaoshal Kishorc Pafhak, aged about 44 years, Son ofShri R.S. Pathak, by occupation Teacher Middle School Dimrapal, Distnct Bastar (C.G.). Shri Chingduram Baghel, aged about 29 years, Son ofShri Laxmaa Ram, by occupation Lower Division Teacher, Balak Ashram, Bastaaar, District Bastar (C.G.). Smt. P. Jyoti Laxmi Naidu, aged about 30 years, Daughter ofShri R.V. Rao, by occupation Lower Division Teacher Kanya Ashraxii Tongapal, Distdct Bastar(C.G.). Smt. Kamla Yadav, aged about 49 years, Wife of Shri Madan Yadav, by occupation Cook, Kaaya Ashram Charama, Distnct Bastar (C.G.). Smt. Keshawati Patra, aged about 54 years, Daufher of Shri Dayaram, by occupation Midwife Mata Rukoiaai Kanya Ashram Dimrapal, Disteict Bastar (C.G.). Smt. Maitri Beko Kashyap, aged about 27 years, Wife ofShri Beko Kosa, by occupation Midwife, Kaoya Ashram Barsoor, Distodct Daiitewada (C.G-). Ku. Rajmati Daade, aged about 28 years, Daughter of Shri Laxmaa Baade, by occupation Cook Kaaya Ashram Barsoor, District Dantewada (C.G.). ^-

26. 27,

33. Respondents Versus 1. 2,

3. 4, Siat Meeaa Yadav, age<fabout 25 years, Daughter of Shri Rajdeo Yadav, by occupation Assistaiit Teacher, Kanya Ashram Bhusaras, Distdct Bastar(C.G.). Shri Bhadrarain. Kashyap, aged about 22 years, Son of Shri Sukhdeo Kashyap, by occupation Lower Division Teacher, Kaaya Ashrain Kutoru, District Bastar(C.G.). Siuit Suryakanta Yadav, aged about 29 years, Daughter of Shri K, Sammaiyya, by occiipation Lower Division Teacher, Kaaya Ashram Bhusavas, Distdct Dantewada (C.G.). Smt. GangaDis^, aged about 27 years, Daughter of Shri Somsai Nag, by occupation Assistaat Teacher, Kaiiya Ashraia Mutaapal, Distdct Bastar (C.G.). Ku. Dropadi Durgaia, aged about 28 years, Daughter of Naggaya Durgain, by occupation Assistant Teacher Kaaya Ashram Bhusavas, Distdct Bastar (C.G.). Smt. Falgauni Nag, aged about 27 years, Daughter of Shri Vishwantihi Nag, by occupation Assistaat Teacher Kanya Ashrain BadekUepal, Distdct Bastar(C.G.). Smt Lakhan Dei Kashyap, aged about 28 years, Daughter of Shri Thibm Kashyap, by occupation Assistaat Teacher Kanya Ashram Jaagla, District Bastar (C.G.). Sint, Shashibala Jumar, aged about 28 years, Daughter of Shri Saminaiyya Jumar, by occupation Assistant Teachr, Kanya Ashram Dhaaora, District Dantewada (C.G.). Kawal Sai Nag, aged about 29 yeears, Son of Shri Fagurain Nag, Assistaat Teacher, Kanya Ashram Kutru, Distdct Daatewada (C.G.). State of Chhatdsgarh fhrough fhe Secretary, Scheduled Caste aad Scheduled Tribes aad Backward Classes Welfare Departixient, D.K.Bhawan, Raipiu-(C.G.) CoUectorTribal Department, District Bastar, Jagdalpur (C.G.). Mata Rukhmaai Seva Sansthan, Dimarapal, District Bastar (C.G.). Secretary, Mata Rukhmaai Seva Satisfhan, Dixarapal, District Bastar r J^ -^^ Sin^le Bench : Hon^le Mr. Justice Satish K. Agnlhotrl, J. Mr. K. K. Trivedi, Advocate with Shri Vishnu Kosfha, Advocate for fhe petitioners. Mr. Paakaj Shrivastava, Panel lawyer for Respondents No. 1 aad 2. Mr. Yashwant Tiwari, Advocate for Respondents No. 3 and 4. ORDER January, 2006) :/ The foUowiag order offhe Court was passed by Satish Ko Aguihotri J. The present petition filed by fhe petitioners under Article 226 offhe Constitution of India chaUenges fhe validity of the orders dated

27.1.2000 (Annexures P/8 to P/40) whereby services of the petitioners have been tenniaated w.e.f 29.2.2000 on fhe ground of irregulanty ia appoiatment because of overage/underage/lack of necessary quaUfications. The petitioners were appointed on vadous posts on various dates as foUows :- Srl No, Naxae of Petitioner Post Date Appoiataient

31.01.1983

18.2.1984

1.3.1988

1.7.191989 Ku.Thaxivarin Ashrain Kaivart Superintendent Shn R. B. Rao Accountant Siat Kamlesh Teacher Shri Basaiit Kumar Teacher Saraf Smt. Rajeshwari Assistant Teacher

25.2.1983 Baifharan Sint. Dhaalaxmi Assistant Teacher

14.7.1993 Kurup Shri Oni Prakash Assistant Teacher

1.12.1990 Ogle

10. 11,

25. 26,

29. Shri Rajendra Teacher

1.3.1994 Prasad Sah Snit Sarswati Sao Ashram

24.3.1983 Superintendent Ku. Savitri Pandey Teacher SmLt KainalJam Teacher Shri Anil Basant Teacher Rao Dhote

1.1.1987

5.1.1983

1.8.1989 Smt. Satwanti Teacher

16.12.1988 Bhamra Ku.MaltiYadav Ashrami

1.7.1987 Shri Shiv Chandra Saachalak, Kanya 1.4.1995 Supermtendent Sah Snit Soni(Saraf) Ashram Kasturi Assistant Teacher

7.5.1983 Ku. LaxmiUddey Teacher Shri Kaushal Teacher Kishore Paftiak

15.9.1992

15.4.1988 Shri Chmgdu Ram Lower Division 18.7.1988 Baghel Teacher Snit Jyoti Laxrai Lower Division 26.10.1987 Naidu Teacher Smt. KamlaYadav Cook Kesharvati Arogya Sevika Smt. Patra

1.7.1980

1.3. 1977 Smt Maitriya Beko Arogya Sevika

1.5.1987 Kashyap Sxnt Baade Rajiaati Cook

30.6.1987 Snit MeenaYadav Assistant Teacher

1.7.1992 Shri Bhadroo Ram Lower Division 1.7.1989 Kashyap Teacher Shri Suiya Kant Lower Division 30.9.1989 Yadav Teacher Smt. Ganga Nag Assistant Teacher

30.6.1991 Ku. Dropadi Assistant Teacher

30.9.1989 Dui^am —

33. Snit. Falguni Nag Assistaat Teacher

1.7.1988 Siat. Lakhaa Dei Assistant Teacher

1.7.1989 Smt. Sashi Bala Assistant Teacher

1.8.1990 Shri Kaawal Sai Assistaat Teacher

1.7.1988 Nag The petitioners were appomted ia fhe Scheduled Castes, Scheduled Tribes aiid Back Ward Classes Department by the State Goverainent. The Respondent No.3 vide oider dated 22.1.1988 (Annexurc P/l) passed by fhe CoUector Baster assunied admioistrative control of 30 AshraEas/Schools whercia soine offhe petitioners were appoiated aad somLe of fhemi were already workiag, as stated above. It was provided in the order itsetf fhe posts sanctioned in tihie Ashraias/Schools would remam fhe same and 100% fixiaacial assistance wai be gxaiited to fhe said Ashrams/Schools fhrough the Respondent No.3. Terms and conditions offhe employees were stated to be goveraed by fhe poUcy offhe State Goveraxnent. The CoUector, Distnct Baster, Jagdalpur vide letter dated 29.11.1990 (Annexure P/2), apprised to fhe Secretaiy/Respondent No.4 niaking it clear that fhe selection for appomtnient of teachers and ofher non- teachiag staff wUl be xaade by a selection committee whereia titie District Education Officer should be a necessaiy parfy, The appouitaients inust be inade after obtaining approval of the CoUector. The Respondent No.4 was furfher directed to supply a list ofteachiag and non-teachmg employees working ia tiie Ashrains/Schools to fhe Divisional Deputy Com.inissioner, Tribal Welfare Departmient, Jagdalpur. The appouitnients of fhe petitioners were diily approved aad fhe petitioners contmued to work tiU a stereotyped notice dated

27.1.2000 was served to fhe petitioners termmatmg services of fhe petitioners w.e.f. 29.2.2000. ^k [^3^

5. The High Court of Madhya Ftedesh at Jabalpiir whereia fhe petition was JBled initiaUy, while issuiag notice granted mterim order on

28.2.2000 to Diaintam status quo wifh regard to the sendces of titie petitioners. Pursuaat to fhe said order the petitioners have been continuuig ta seryices,

6. Learaed counsel Shri K. K. Trivedi wifh Shri Vishnu Kostha, leamed Advocate, appearing for fhe petitioners submitted fhat fhe mstitutions wherein^ fhe petitioners were appointed and have beeu workiag as teachers aiid non-teachers were fiilly financed by fhe Govemment. The appomtments were made after verifymg age, quaUfication of fhe petitioners for fhe posts. Services of the petitioners have been termiaated with one monfh?s notice wifhout holdiag proper enquiry, so as to reach to fhe conclusion fhat some irregularity, say, overage, uaderage or lack of ediicational quaUfication, as poiated out, were found m cases of fhe petitioners. The respondents by stereotyped notice dated 27.1,2000 have terminated fhe services of all fhe petitioners without niaking any enquiry iato fhe aUegation of UTeguladty, if aay, committed at the time of appoiatnients of the petitioners, The petitioners were appoiated for niorc fhaa 10 years earUer, prior to fhe issuauce ofthe unpugned notice dated 27.1.2000. Leamed counsel relied cn decisions of Supreme Court ia Basudeo Tiwary V. Sido Kanhu Unlversity and others1, Uptron India Ltd. V. 8hammi Bhan & another2 aad fhe decision of the High Court of Madhya Pradesh at Jabalpur m S. K. Malviya and others Vs. State of M.P. and others3.

7. It was next contended that Madhya Pradesh Ashaskiya Shikshan Saasfha (Adhyapakou Tatha Anya Karmachariyon Ki Bharti) Niyam, 1979 (hereuiafter referred as ^Niyaai, 19793) prescribes niininiuni age (WR 1998 S.C. 3261 2AIR 1998 S.C, 1681 32002(1) M.P.L.J. 575 ) r—-"n > aad qualifications ofteachers aad ofher employees working ia non- govemraent educational iastitutions. In case of aU fhe einployees minimum age is prcscribed and no maximum age has been prcscribed,

8. Shri Yashwaat Tiwari learaed counsel appeadng for the respondente No. 3 aad 4 siibmitted fhat it is admitted fact fhat no enquuy was held to arrive at the conclusion fhat fhe petitioners who were workiag as teachers aad ofher eniployees in fhe Ashraias/ Schools were eifher zinder age or overage or lacked in rcqziired ediicational qiiaUfication for fhe posts at fhe tune of their appointments. Leamed counsel further submitted that fhe respondents No. 1 and 2 might have made some enquiiy beforc directmg the respondents No. 3 and 4 to take steps but fhe respondents No. 3 aad 4 have not conducted aay enquiry in fhe matter and fhe iiapugned notices/orders were passed at fhe behest of fhe Respondents No. 1 aad 2 without applyiag aay mind by fhe inanageiaent of fhe respondents No. 3 and 4. <3. Shri Pankaj Shrivastava, leanied Paael lawyer appearing for fhe respondents No. 1 aad 2 submitted that fhe State Govemment had not filed aay rcply in fhe inatter.

10. In fhis petition, notices were issued on 28.2.2000 and fhercafter several opportunities werc given to fhe respondents No. 1 and 2, notwithstandiag various adjoumments, no reply was fUed by fhe respondents No. 1 aad 2. On perusal of fhe relevaut Riiles learaed counsel for ffaie respondents No. 1 aad 2 subndtted fhat Niyaxa 1979 do not provide any mLaxiniuia age lunit. It was contended that the iristnictions were issued to fhe respondents No. 3 and 4 to exaiGaiae cases of the petitioners about irreguladty at fhe tiine of appoiatnient in regard to fhe suge and fhe qzialification of fhe petitioners aad ft8N= ^ respondents No. 3 and 4 had issued iaipugned notice/order dated

27.1.2000 wifhout holdiag aa enquiiy.

11. Afiter heariiig leamed counsel for aU the parties and perusing rccord, it is evident that no enquuy was condiicted before issuing impugned notice/order dated 27.1.2000 as to whefher fhe petitioners were underage, overage or lacked ia educational quali&cation. Even fhe notices issued to the petitioners are stereotyped whereia, aU the fhree above stated ureguladties were nientioned ia fhie notice and flie relevaat entries had been tick marked. It is weU settled prmciple of law fhat ia order to hold fhat fhe appointinents were contraiy to the provisions of law or irrcgularities were coiniaitte.d in selectmg caadidates, necessarily aa enqiiiry has to be held beforc coming to such conclusion, particularly, m fhe prcsent case where there is no allegation of enblock irregularily/iUegaUties in fhe selection process, which have been caacelled m its totaUty later on. In Basudeo Tiwary^s case (supra) ftie Supreme Court has held as under:- ttl2. The said provision provides that an appointment could be tenninated at any time without rwtice if the same had been macte contrary to the provisions of fhe Act^ Statutes^ Rules or Regulations or in any irregulw9 or unauthorisied manner The condiiion precedent for exerdse of this power is that an appointment had been madte corrfrary to Act, Rules, Statutes and Regulations or oiherwise. In order to arrive at a condusion that an appoir^ment is contrary to the provisions of ihe Ac(, Statutes^ Rules or Regulations eta a finding has to be recorded and unless such a finding is recorded, terminaiion cannot be made^ bui to arrive at such a conclitsion neoessarily an enquiry will have to be made as to whether such appointment was conirary to the provisions of the Act etc. If in a given case szich exerase is absent, the condition precedent stands unfulfilled. To arrive at such afinding neoessarily enqpjdry notice will have to be held and in holding such an enquiry fhe person whose appointment is under enquiry will have to be issued to him. If notice is not given to him then it is like playing Hcunlet without the Prince of AQ Cz^ that is, if the employee concemed whose righis are Denmark, affecfed, is noi given natioe ofsuch aprooeeding and a oonchtsion is drawn in his absence^ such a condusion would not be just, fcdr or reasonable as rwtioed by this Court in D.T.C MazdDor Sabha's case (AIR 1991 SC 101). In such an event, zue have to hold that in the proznsion ihere is an implied requirement of hearingfor the purpose of amving at a concltision thal an appointmjent had been macfe contrary to the Act, Siatute, Rule or Regulation eta and it is ordy on szich a corvclitsion being drawn^ the services of the person could be temnnated without further noft'ce. That is how S. 35(3) in this case will have to be read. w

12. In Uptroa ladia Ltd.^s case (supra) fhe Supreme Court has held that €sit is now well settled that the services of a permanent employee^ whether employed by ihe Govermnent, or Govemment company or Govemment instrumentality or Statutory Corporation or any other authority within the meaning of Article 12, cannoi be terminated abruptly and arbitrarily^ either by giving him a rrwnth's or three nwnths9 noiice or pay in Ueu thereof or even without notice^ notwiihstanding ihai there may be a stipulation io that effect either in the contraci ofservice or in the Certified Standing Orders^

13. In 8. K. Malviya^s case (supra) fhe High Court of Madhya Pradesh while consideriiig fhe provisions of M,RAshaskiya Shikshan Saasfha (Adhyapakon Tafha Anya Karmchadyon Ko Padchyut Kame/ Sewa Se Hatane Sambaadhi Prakriya) Niyam, 1983 has held as inider:- <(6. Under the said Acl^ Rules M.P. Ashashkiya Shikshan Sanstha (Adhyapakon Tatha Anya Karamchariyon Ko Padachut Kame Sewa Se Hatane Sambandhi Prakriya) Niyamy 1983 are framed. Rule 12(3) ofthe scdd Rule reads cts under' <( 12(3) representation, if any, majde by the teadwr or other employee, (a) The Mcmagement considering (Setemune what action, if any, should be taken against the teacher or other employee and make a proposal for the order which it intends to pass. 1 J-3- @) (b) The Management shall thereupon forward the whole case along with its proposal of the Order intended io be passed to the its approval and the Competent Competent Authority for Authority shall not refuse to grant such approval except on one or more 6f the following grounds:- (i) that there has not been, in the course of enquiry, proper or suffident complicmoe of the procedure laid down in these rules. That the provisions of the Act csre Ukely io be defeated by the said Order; and, Tfzat ihe said Order, on thefcfjce ofii, is peruerse, 7. Rule 12(3)(b) of fhe scdd Rules recpjdres approval of the (iii) fii) )> Compeieni Authority if an employee is required to be renvoved. The scifeguard provided under the rule should be applied equally to renwval of cdl approved teachers whether they are removed after enquiry or without conducting enquiry. A Division Bench of this Cowi in Bhartiya Vidya Mandir Vs. Smt Pushpa Agarwal, 1993 (R) MPWN 37 held ihat services vnthout the approval ofthe Competent AuthDrity, canrwt be terrmnaied. ^

14. Learaed counsel for the respondents have not denied tihie fact fhat no enqiiiry was held to come to fhe conclusion fhat aay irreguladly with regard to fhe age or eUgibUity condition was held m fhe case of any of tiie petitioners.

15. For ffaie reasons stated above the petition is aUowed aad fhe impugned orders dated 27.1.2000 (Annexures P/8 to P/40) are quashed. In fhe pecuUar facts and circuEastaaces of fhe case, fherc shaU be no order as to costs. Sd/- Satish K. Agnihotri Judge Thakur