Bhaiyalal Gendre v. S.P. Verma & Another, whereby
Case Details
1 2025:CGHC:38191 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4197 of 2023 1 - Bhaiyalal Gendre S/o Late Budhari Das Gendre Aged About 37 Years Working As Assistant Teacher (L.B.), Primary School Sonbarsa, P.S. Kawardha, District Kabirdham (C.G.) ... Petitioner(s) versus 1 - Commissioner, Durg Division Durg, District Durg (C.G.) 2 - Collector Kabirdham, District Kabirdham (C.G.) 3 - Chief Executive Officer Janpad Panchayat Kawardha, District Kabirdham (C.G.) 4 - S.P. Verma Chief Executive Officer, Janpad Panchayat Kawardha, District Kabirdham (C.G.) 5 - R.K. Keshariya Head Master, Govt. Primary School, Sonbarsa, Block Kawardha, District Kabirdham (C.G.) ... Respondent(s) (Cause-title is taken from Case Information System) For Petitioner : Mr. C. J. K. Rao, Advocate For State : Ms. M. Asha, Panel Lawyer SB- Hon'ble Shri Justice Amitendra Kishore Prasad 01/08/2025 Order on Board 1. The petitioner has preferred the instant writ petition against the order dated 22.06.2023 (Annexure P/1) passed by the Commissioner, Durg Division, in Case No. 868-121/Year 2009-10 Bhaiyalal Gendre vs. S.P. Verma & Another, whereby the learned Commissioner dismissed the revision filed by petitioner and affirmed the order dated 08.02.2010 Digitally signed by SHAYNA KADRI 2 passed by the Collector, Kabirdham, thereby upholding the cancellation appointment of the petitioner as Shikshakarmi Grade-III. The petitioner was appointed as Shikshakarmi Grade-III vide order dated 05.06.2006 and joined duty on 16.06.2006, based on a vocational stream certificate of Higher Secondary Examination, issued by CBSE, which was valid under the prevailing Chhattisgarh Panchayat Shikshakarmi (Recruitment and Service Conditions) Rules, 1997. However, the Janpad Panchayat Kawardha vide order dated 07.08.2007, unilaterally cancelled the appointment of petitioner, alleging the certificate was not equivalent, without issuing any show cause notice or affording an opportunity of hearing. Aggrieved, the petitioner preferred an appeal before the Collector, Kabirdham, who initially stayed the order dated 07.08.2007, but subsequently dismissed the appeal on 08.02.2010. A revision petition was filed before the Commissioner, who passed a status quo order on 08.03.2010. During the pendency of proceedings, the petitioner continued in service and was subsequently absorbed into the Education Department vide order dated 22.09.2018. The service record bears no entry regarding termination, and the Janpad Panchayat, in its reply before the Commissioner, also admitted the continued service of petitioner and absorption. Despite the above, the
Legal Reasoning
Commissioner, vide impugned order dated 22.06.2023, affirmed the cancellation of appointment, erroneously holding that the marks of petitioner included theory and practical components inconsistent with eligibility criteria, without considering the absence of a departmental inquiry or prior notice to the petitioner. The impugned order is, therefore, vitiated by non-compliance with principles of natural justice, and misappreciation of facts and relevant recruitment rules. The 3 petitioner remains in continuous service to date. Hence, this writ petition is filed seeking following reliefs : “10.1 That, this Hon'ble Court may kindly be pleased to set-aside the order dated 22.06.2023 (Annexure P/1) passed by respondent No.1. 10.2 That, this Hon'ble Court may kindly be pleased to set-aside the order dated 07.08.2007 (Annexure P/4) and order dated 08.02.2010 (Annexure P/6). 10.3 That, the Hon'ble Court may kindly be pleased to gran any other relief as it may deems fit and appropriate.” 2. Facts of the case, in a nutshell, are that the petitioner was appointed as Shikshakarmi Grade-III at Government Primary School, Sonbarsa, vide appointment order dated 05.06.2006, and he duly assumed charge on 16.06.2006. The appointment was made following due process under
Legal Reasoning
the applicable recruitment norms. The petitioner was selected for the said post based on his Higher Secondary vocational certificate, which was issued by the Central Board of Secondary Education (CBSE) through Jawahar Navodaya Vidyalaya, Mana, Raipur. At the time of appointment, the Chhattisgarh Panchayat Shikshakarmi (Recruitment and Service Conditions) Rules, 1997, permitted selection on the basis of such qualifications, and the petitioner met the eligibility criteria as per the prevailing rules. However, to the utter shock and dismay of the petitioner, the Janpad Panchayat, Kawardha, vide order dated 07.08.2007, arbitrarily cancelled the appointment of petitioner, on the premise that the Principal of the concerned school had erroneously treated the Senior School Certificate Examination mark sheet as 4 equivalent to a vocational qualification. This unilateral action was taken without issuance of any show cause notice or affording any opportunity of hearing to the petitioner, which is not only a violation of the principles of natural justice but also contrary to the clauses of the appointment order. Being aggrieved by the cancellation of his appointment, the petitioner preferred an appeal before the Collector, Kabirdham. In the appeal, the petitioner categorically submitted that the impugned cancellation was in gross violation of procedural fairness, as no prior notice or opportunity to be heard was provided, and that his appointment was in accordance with the Recruitment Rules of 1997. On a preliminary hearing, the Collector was pleased to stay the operation of the impugned order vide interim order dated 24.09.2007. However, upon final adjudication, the Collector dismissed the appeal vide order dated 08.02.2010, thereby upholding the cancellation. The petitioner, still aggrieved, invoked the revisional jurisdiction of the Commissioner, Durg Division, by filing a revision petition against the order of Collector. The Commissioner, upon hearing the matter, was pleased to grant interim protection to the petitioner by way of a status quo order dated 08.03.2010, allowing the petitioner to continue in service pending final adjudication. During the pendency of the revision, the petitioner continued to render uninterrupted service, and eventually, his services were formally absorbed into the Education Department by virtue of order dated 22.09.2018. This absorption was carried out after due verification and in accordance with the prevailing departmental policies. In the reply filed by the Janpad Panchayat before the Commissioner, the said authority categorically admitted that the petitioner is in continuous service, and his services stand absorbed in 5 the Education Department. Importantly, the Panchayat also confirmed that there exists no entry in the service book of petitioner indicating any termination or discontinuation of his services. Despite the above factual matrix, the learned Commissioner, Durg Division, vide impugned final order dated 22.06.2023, dismissed the revision petition of the petitioner and confirmed the earlier orders of cancellation of appointment dated 07.08.2007 and the order of Collector dated 08.02.2010. The Commissioner, while doing so, erroneously held that the marks of petitioner, considered for appointment, included both theoretical and practical components and that the vocational qualification was not in
Decision
conformity with the recruitment criteria. The impugned order is liable to be quashed for multiple reasons, inter alia, because the Commissioner failed to appreciate that the cancellation of appointment of the petitioner was made without any show cause notice or inquiry, thereby violating the fundamental principles of natural justice. No departmental enquiry was conducted, nor was any illegality proved in the appointment procedure. The qualification of petitioner from CBSE, Senior School Certificate with vocational stream, is valid, recognized, and permissible under the 1997 Recruitment Rules. Till date, the petitioner continues in service and has not been served with any formal order of termination or discontinuation. The entire proceedings culminating in the impugned order are, therefore, contrary to law, arbitrary in nature, and violative of the constitutional rights of petitioner, meriting interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. 3. Learned counsel for the petitioner submits that the entire action of the 6 respondent authorities, beginning from the cancellation of the appointment order dated 07.08.2007, to the impugned order passed by the learned Commissioner on 22.06.2023, is patently illegal, arbitrary, malafide, and in gross violation of the principles of natural justice. The petitioner, having been duly selected and appointed to the post of Shikshakarmi Grade-III in the year 2006, has rendered long, uninterrupted, and satisfactory service. Yet, for reasons neither justified nor supported by any cogent material, the respondent authorities have sought to destabilize his career without affording him any meaningful opportunity of hearing. Such action strikes at the very root of fairness in public employment and is thus fit to be quashed by this Court. It is submitted that the petitioner was fully eligible for appointment to the post of Shikshakarmi Grade-III, and his selection was made strictly in accordance with the prevailing recruitment norms, particularly the Chhattisgarh Panchayat Shikshakarmi (Recruitment and Service Conditions) Rules, 1997. At the relevant time, the rules recognized candidates holding Senior Secondary (Higher Secondary) certificates with vocational education as eligible. The petitioner had passed the Senior School Certificate Examination with vocational stream from the CBSE through Jawahar Navodaya Vidyalaya, Mana, Raipur, a fact not disputed by the respondents. The qualification held by the petitioner is a recognized qualification under the CBSE framework and is treated as equivalent to Higher Secondary with vocational course. Therefore, there was no defect or illegality whatsoever in his eligibility or appointment. However, in complete disregard to these facts, the respondent Janpad Panchayat proceeded to cancel the validly issued appointment order of petitioner vide order dated 07.08.2007. The 7 cancellation was done solely on the basis of an internal interpretation regarding the nature of marks awarded in the vocational stream, more specifically, whether the marks included practical and theory components. This action was taken without any independent verification or enquiry, and without putting the petitioner on notice. It is further submitted that no material irregularity or misrepresentation was alleged or proved against the petitioner. In fact, the respondent authorities never disputed the authenticity of the qualification of petitioner or the certificate issued by the CBSE. Thus, the foundation of the cancellation order is wholly baseless, factually incorrect, and legally unsustainable. Crucially, the cancellation order dated 07.08.2007 was passed without issuing any show cause notice or giving the petitioner an opportunity of being heard. This omission renders the order void ab initio. The principle of audi alteram partem is the soul of natural justice and is engrained in administrative jurisprudence. It is now well-settled that any order affecting civil rights of an individual must conform to the principles of natural justice. In the present case, neither the Janpad Panchayat nor the authorities below ensured this elementary safeguard. This Court, in catena of decisions, has consistently held that deprivation of livelihood without prior notice and hearing is unconstitutional. The authorities failed to discharge their statutory and constitutional duty to act fairly and reasonably. It is also submitted that the learned Commissioner, Durg Division, while adjudicating the revision, failed to appreciate the procedural lapses committed by the Janpad Panchayat. Instead of examining whether the initial order of cancellation was passed in accordance with law, the learned Commissioner has ventured into a reassessment of the qualification of 8 petitioner without jurisdiction, without any departmental enquiry, and most glaringly, without giving the petitioner any opportunity to rebut the adverse findings. The reasoning of Commissioner suffers from the same vice as the original order, complete absence of procedural fairness and disregard of established principles of service jurisprudence. It is shocking that while the Janpad Panchayat itself admitted before the Commissioner that the petitioner remains in service and has been absorbed into the Education Department, the learned Commissioner still proceeded to affirm the cancellation order. The impugned order dated 22.06.2023 passed by the learned Commissioner is not only perverse but also without jurisdiction. Once the petitioner had been absorbed in the Education Department by order dated 22.09.2018, and continued in service for over a decade, the Commissioner had no lawful authority to revisit or undo the appointment without initiating a departmental proceeding or giving the petitioner any chance to defend himself. Moreover, the order of absorption itself was passed after due verification by the competent authorities, thereby creating a vested right in favour of the petitioner. In such circumstances, the impugned order is rendered wholly illegal, arbitrary, malafide, and fit to be set aside. Lastly, it is submitted that the petitioner has suffered immense mental agony, uncertainty, and hardship, due to no fault of his own. He has served with utmost diligence and integrity since 2006, and has been treated unjustly by the respondent authorities despite his lawful appointment, continued service, and subsequent absorption. The petitioner, being a law-abiding citizen and a public servant, is entitled to protection of his service rights and dignity under law. In view of the foregoing submissions, it is 9 prayed that this Court may be pleased to quash and set aside the impugned order dated 22.06.2023 passed by the learned Commissioner, Durg Division, as well as the cancellation order dated 07.08.2007 and the order of Collector dated 08.02.2010 and declare that the appointment and absorption of petitioner into the Education Department are legal, valid, and in accordance with applicable rules. 4. Learned State counsel submits that the writ petition filed by the petitioner is devoid of merit and is liable to be dismissed in limine. The action of the respondent authorities, particularly the Janpad Panchayat and the learned Commissioner, is fully in accordance with law, and does not suffer from any procedural or substantive infirmity. The appointment of petitioner was contrary to the eligibility criteria prescribed under the applicable rules, and the cancellation thereof was a necessary administrative correction to prevent continued illegality in public service. It is specifically submitted that the petitioner was never eligible for appointment to the post of Shikshakarmi Grade-III, as he held a vocational qualification, which is not recognized for the purposes of recruitment to the said post under the Chhattisgarh Panchayat Shikshakarmi (Recruitment and Service Conditions) Rules, 1999. The eligibility requirement under the rules clearly stipulates that candidates must possess a Higher Secondary (10+2) certificate in academic streams, not vocational training programs. The vocational stream undertaken by the petitioner lacks parity with the prescribed qualification, particularly in terms of curriculum content, assessment methodology, and educational standards. Since the very basis of appointment, i.e., the qualification, is non est in law, the petitioner 10 never acquired any valid or enforceable right to hold the post. The appointment was void ab initio, and therefore, does not require the State to conduct a formal departmental enquiry under Rule 7 of the 1999 Rules. It is submitted that Rule 7 pertains to misconduct, misbehavior, or disciplinary infractions committed by a duly appointed and qualified employee, and is not applicable in cases where the appointment itself is illegal due to ineligibility at the threshold. It is further submitted that the cancellation order dated 07.08.2007 was passed purely on legal grounds, after due verification of the educational credentials of petitioner and in light of the clarification regarding equivalence of vocational courses. The mark sheet of petitioner clearly reflects that the qualification is vocational in nature, and as such, could not have formed the basis for appointment. This action falls within the permissible domain of administrative review, which aims to ensure that appointments in public service are made strictly in compliance with statutory rules. Therefore, no show cause notice or opportunity of hearing was warranted, as the cancellation is not punitive in nature but a rectification of an illegality. The reliance of the petitioner on principles of natural justice is misconceived, as the same cannot override express statutory provisions or justify continuation of an illegal appointment. Natural justice is not an abstract or inflexible doctrine; it must yield where the facts and law clearly indicate that the appointment was obtained without requisite qualifications. In such cases, the State is not bound to hold an enquiry, especially when the relevant rule (Rule 7) is not attracted to the facts of the case. The learned Commissioner, Durg Division, has rightly appreciated the legal position and passed a well-reasoned order dated 11 22.06.2023, wherein it has been specifically observed that the marks awarded to the petitioner included both theory and practical components under the vocational stream, which do not satisfy the eligibility standard. The Commissioner was under no obligation to provide a personal hearing when the core issue pertained to a documentary assessment of qualification and was not a case of misconduct or dereliction of duty. The fact that the petitioner may have continued in service or that the Janpad Panchayat subsequently filed a reply acknowledging his continued employment does not validate an otherwise void appointment. Mere continuation or absorption cannot cure an inherent illegality. It is a settled principle that there is no estoppel against statute, and no vested right can accrue from an appointment made contrary to law. In view of the above, the attempt made by petitioner to invoke the extraordinary jurisdiction of this Court under Article 226 is clearly misplaced. The petition seeks to protect an appointment that was never valid in the eyes of law and is therefore not entitled to constitutional protection. Allowing such a petition would amount to legitimizing a clear breach of statutory recruitment norms and would defeat the purpose of maintaining integrity in public service. 5. I have heard learned counsel for the respective parties and also perused the documents annexed along with the writ petition. 6. Upon a thorough and anxious consideration of the rival submissions made by learned counsel for the parties, perusal of the entire record including the impugned orders, and keeping in mind the legal framework governing the appointment and service conditions of Shikshakarmi Grade-III in the State of Chhattisgarh, this Court is of the 12 considered view that the cancellation of the appointment of petitioner, as affirmed by the orders of the Collector and the Commissioner, suffers from multiple legal infirmities and is not sustainable in law. 7. To begin with, it is pertinent to reiterate that the petitioner was appointed to the post of Shikshakarmi Grade-III on 05.06.2006 and had joined service on 16.06.2006. His selection was made pursuant to and in accordance with the provisions of the Chhattisgarh Panchayat Shikshakarmi (Recruitment and Service Conditions) Rules, 1997, which were applicable at the relevant time. The eligibility criteria under the said Rules, as they then stood, permitted candidates who had passed the Higher Secondary examination with a vocational stream to be considered eligible for appointment. The petitioner produced a Senior School Certificate from the Central Board of Secondary Education (CBSE), which specifically reflected that he had passed in the vocational stream. The certificate was issued by a recognized institution, Jawahar Navodaya Vidyalaya, Mana, Raipur. There is no material on record to suggest that the certificate was either forged, unauthentic, or falsely obtained. At the time of appointment, this qualification was duly accepted by the appointing authority without demur. Thus, on the face of it, the selection and appointment of petitioner were made in accordance with the rules then in force, and after due verification of eligibility. However, subsequently and without any warning or provocation, the Janpad Panchayat Kawardha, by order dated 07.08.2007, cancelled the appointment of petitioner, relying solely on an observation that the vocational certificate was wrongly treated as equivalent to the eligibility criteria prescribed. This abrupt 13 cancellation was carried out without issuance of any show cause notice, without affording an opportunity of hearing, and without holding any departmental enquiry as mandated under Rule 7 of the Chhattisgarh Panchayat Shikshakarmi (Recruitment and Service Conditions) Rules, 1999, which had by then replaced the earlier 1997 Rules. 8. Rule 5 and Rule 7 of the Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999 is quoted below for ready reference : 5. Penalties. - The following penalties may, for good and sufficient reasons, and as hereinafter provided by imposed on a member of the Panchayat Service namely :- xxx xxx (b) Major Penalties- xxx xxx (vi)Removal from service not disqualifying for future employment; xxx xxx 7. Procedure for imposing major penalties. - (1)No order, imposing on a member of the Panchayat Service, any of the penalties specified in clauses (iv) to (via) of Rule 5 shall be passed except after a formal inquiry is held as far as may be, in the manner hereinafter provided. (2)When an order for formal inquiry has been made, the disciplinary authority shall frame Definite charges on the basis of allegations and shall communicate such charges, alongwith the statement of the allegations, to the member of the Panchayat Service and also require him to submit, within such time as may be specified a written statement of defence and also to state whether he desires to be heard in person. (3)The person against whom inquiry is to 14 be held shall, for the purpose of preparing to defence, be permitted to inspect and take extracts from such records as he may specify : Provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the Enquiry' Officer such records are not relevant for the purpose or it is against the public interest to allow his access thereto. (4)On receipt of the written statement of defence or if any such statement is not received within the time specified, the disciplinary authority may himself enquire into such of the charges as are not admitted or appoint an Enquiry Officer to hold the inquiry and forward to him his report and, if advised, his recommendation alongwith all the inquiry papers. (5)The disciplinary authority may nominate any person to present the case in support of the charges before the Enquiry Officer. The member of the Panchayat Service may present his case with the assistance of any other Panchayat Servant of State Government Servant approved by the Enquiry Officer but may not engage a legal practitioner for the purpose, unless the person nominated by the disciplinary authority as aforesaid is a legal practitioner or unless the disciplinary authority having regard to the circumstances of the case so permits. (6)If the servant of the Panchayat Service desires to be heard in person, he shall be so heard. If he so desires or if the disciplinary authority so directs, an oral enquiry shall be held by the Enquiry Officer. At such inquiry, evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross examine the witness, to give evidence in person, to produce documentary evidence, if any and to have such witness called as he may wish : 15 Provided that the Enquiry Officer may, for reasons to be recorded in writing, refuse to call a witness. (7)At the conclusion of the inquiry, the Enquiry Officer shall prepare a report of the inquiry, recording his findings on each of the charges together with reasons therefor. (8)The proceedings conducted against the persons charged shall contain a sufficient record of :- (i)the charges framed against such person and the statement of allegations; (ii)the written statement of defence if any; (iii)the oral evidence taken in the course of the inquiry; (iv)the documentary evidence considered in the course of the inquiry; (v)the orders, if any, made by the Enquiry Officer or the disciplinary authority, as the case may be, with regard to the inquiry; (vi)a report setting out the findings on each charge and the reasons therefor. (9)The Enquiry Officer, if he is other than the disciplinary authority, shall submit the records of the proceedings mentioned in clause (8) above to the disciplinary authority without recommendation relating to the penalty to be imposed. The disciplinary authority shall consider the record of the enquiry and its findings on each charge, having regard to the findings on the charges and the record (if the proceedings) if he is of the opinion that any of the penalties specified in clauses (iv) to (vii) of Rule 5 should be imposed, it shall furnish to the person charged a copy of the report of the Enquiry Officer, and where the disciplinary authority is not the Enquiry Officer a statement of its findings together with brief reasons for disagreement, if any, 16 with the findings of the Enquiry Officer. (10)The disciplinary authority shall consider the representation, it any, made by the person charged in response to the notice and determine the penalty, if any, should be imposed and shall pass appropriate order on the case. (11)The orders passed by the disciplinary authority shall be communicated lo the member of the Panchayat Service, who shall also be supplied with a copy of the report of the Enquiry Officer and where disciplinary authority is not the Enquiry Officer, a statement of its findings together with the brief reasons for disagreement, if tiny, with the findings of the Enquiry Officer, unless they have already been supplied to the person charged. 9. A Division Bench of this Court, in Rooplal Nayak v. State of Chhattisgarh and Others, reported in 2006 (4) M.P.H.T. 99 (C.G.), has clearly held that no major penalty, as prescribed under Rule 5(b) (iv) of the Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999, can be imposed on a member of the Panchayat service governed by the said Rules without conducting a regular departmental enquiry in accordance with Rule 7 thereof. 10. It is well settled in service jurisprudence that any action which affects the livelihood, reputation, or civil consequences of an employee must be preceded by procedural fairness. This includes, as a minimum standard, the requirement to issue a show cause notice, to conduct an enquiry, and to give the employee an opportunity to defend himself. In the present case, there is a complete absence of any such compliance. The action of the Janpad Panchayat is therefore not merely a technical lapse but a substantive violation of the foundational principle of audi alteram partem, which underpins the concept of natural justice in 17 administrative decision-making. The argument of the learned State counsel that no enquiry was necessary because the qualification of petitioner was “void ab initio” is both factually and legally untenable. While the State is entitled to argue that the qualification of petitioner may not strictly conform to the standard academic streams intended under the rules, that conclusion cannot be arrived at unilaterally or arbitrarily. Once a person has been appointed, has joined, and has continued in service for a prolonged period, here, more than a decade, it is incumbent upon the State to initiate a due process under Rule 7 if it intends to disturb the employment status of such individual. The fact that the State seeks to bypass this process on the strength of a unilateral interpretation of eligibility is deeply concerning and contrary to settled law. Even assuming that the vocational certificate was arguably not aligned with the intended recruitment norms, the petitioner should have been served with a notice and called upon to explain his position. If deemed necessary, an enquiry could have been initiated to ascertain if any misrepresentation or material concealment had occurred. The absence of this process renders the cancellation order, and all subsequent affirmations thereof, vulnerable to being declared as void on the ground of procedural ultra vires. Moreover, an important and compelling aspect of the case is the subsequent absorption of the petitioner into the Education Department by order dated 22.09.2018. This development occurred after the petitioner had rendered continuous and uninterrupted service for over a decade. The said absorption was not provisional or conditional; it was formal, administrative recognition of the services of petitioner, and was presumably done after verification of records and compliance with 18 internal administrative procedures. No challenge has been raised against the said absorption order. In fact, the reply filed by the Janpad Panchayat before the Commissioner, as annexed with the writ petition, clearly acknowledges that the service record of petitioner does not reflect any termination or disciplinary action. The Commissioner, while passing the impugned order dated 22.06.2023, failed to consider this critical factual development and instead proceeded to affirm the cancellation of appointment that was never actually implemented in service records. This glaring inconsistency between administrative conduct and judicial reasoning renders the impugned order patently perverse and unsustainable. 11. A perusal of the return of the respondents would show that no enquiry was conducted before inflicting major penalty. The petitioner since was a member of Panchayat Services as per the rules of Chhattisgarh Panchayat Service (Discipline and Appeal) Rules, 1999, section (2)(f), the major penalties are contemplated under Rule 5(b)(vi) for removal and in order to inflict such major penalty, reading of Rule 7 in its entirety contemplates that without any enquiry, the major penalties cannot be inflicted. This Court does not satisfy the fact that whether the enquiry was conducted in respect of the petitioner or not. Therefore, prima facie, it appears without there being an enquiry and without giving opportunity of hearing to the petitioner, dehors the rules the petitioner was inflicted with major penalty of removal from service. The return filed by the State and the documents annexed thereto would categorically establish the fact that no opportunity of hearing was given and the Rules of audi alteram partem were departed. Hon’ble the 19 Supreme Court in Kalpraj Dharamshi Vs. Kotak Investment Advisors Ltd., reported in (2021) 10 SCC 401 has categorically held that when the proceedings invoked before a statutory authority are dehorse the jurisdiction or when they are in breach of principles of natural justice, the party would be entitled to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. 12. Further in a mere recent decision, Hon’ble the Supreme Court in PHR Invent Educational Society vs. Uco Bank, reported in 2024 SCC OnLine SC 528 held that certain exceptions have been carved out by the Court when a petition under Article 226 of the Constitution could be entertained in-spite of availability of an alternative remedy. Para 29 is relevant and quoted hereinbelow : “(i) where the statutory authority has not acted in accordance with the provisions of the enactment in question; (ii) it has acted in defiance of the fundamental principles of judicial procedure; (iii) it has resorted to invoke the provisions which are repealed; and (iv) when an order has been passed in total violation of the principles of natural justice.” 13. In the instant case, the procedure prescribed in Rule 7 of Panchayat Service (Discipline and Appeal) Rules 1999 that no order imposing any of the major penalties specified in clause (iv) to (vii) of rule 5 shall be passed without there being any opportunity of hearing, was completely by-passed. 14. In an identical petition coordinate bench of this Court has passed an 20 order in case of Prakash Chand Soni Vs. State of Chhattisgarh and others in WPS No.1846/2011 on 15/07/2015 and it was held as under:- “(3)The short issue arisen for determination is - whether services of a Panchayat Secretary can be dispensed with or terminated without conducting any enquiry as envisaged under Rule 7 of the C.G. Panchayat Service (Discipline and Appeal) Rules, 1999 (in short "the Rules, 1999")? (4)Admittedly, on certain allegations, an enquiry was conducted against the petitioner and eventually, an enquiry report was submitted vide Annexure R/4 and thereafter, show cause notice was issued to him on 28.04.2008 vide Annexure R/3, therefore before removing him the principles of natural justice have been complied with. However, at the same time, it is to be seen that a Division Bench of this Court in the matter of Rooplal Nayak vs. State of Chhattisgarh and others, 2006(4) M.P.H.T. 99 (C.G.) has held that any of the major penalty prescribed under Rule 5(b) (iv) of the Rules, 1999 cannot be imposed on a member of Panchayat service to whom the said Rules are applicable without conducting regular Departmental Enquiry as envisaged under 7 of the Rules, 1999. (5)In the case at hand, an enquiry officer was appointed, who conducted some sort of enquiry and submitted an enquiry report, however, that runs short of a departmental enquiry as contemplated under Rule 7. The said provisions uses the words "formal inquiry" with further stipulation that when an order for 'formal enquiry has been made, the disciplinary authority shall frame Definite charges, communicate the same to the delinquent along with the statement 21 of allegations, requiring him to submit within the specified time a written statement of defence and also to state whether he desires to be heard in person. Thereafter, the defence is required to be permitted to inspect and take extracts from the records, which can be refused for reasons to be recorded in writing. On submission of reply by the delinquent, the disciplinary authority may himself enquire or appoint an enquiry officer. Appointment of Presenting Officer and seeking assistance of some other officers by the delinquent is also contemplated therein. The enquiry officer is also enabled to record evidence and thereafter, at the conclusion of the enquiry, the enquiry officer is supposed to prepare enquiry report, the copy of which is required to be furnished to the delinquent. Thus, the 'formal inquiry' envisaged under the Rules is akin to the procedure prescribed for a regular enquiry under Rule 14 of the C.G. Civil Services (Classification, Control and Appeal) Rules, 1966.” 15. The Hon’ble Supreme Court in the matter of Haryana State Industrial Development Corporation Vs. Shakuntla & Ors., reported in (2010) 12 SCC 448 has held at paragraph 15 as under:- “15.The discretion to change a policy in exercise of the executive power, which appears to be the case in the present matter, must be exercised fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. It has been observed by this Court, as noted hereinabove, that a question whether the impugned action is arbitrary or not, is to be ultimately answered on the facts and circumstances of the given case. It was rightly held that where a particular mode is prescribed for doing an act and there is no 22 impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary.” 16. Likewise the Honb’le Supreme Court in a recent case reported in 2024 SCC OnLine SC 3032 in between GLAS Trust Co. LLC Vs. Byju Raveendran & ors. has held at paragraphs 69 and 70 as under:- “69. In a consistent line of precedent, this court has held that "inherent powers" may be exercised in cases where there is no express provision under the legal framework. However, such powers cannot be exercised in contravention of, conflict with or in ignorance of express provisions of law. We may helpfully refer to the observations of a two- judge Bench of this court in one such case. In Ram Chand and Sons Sugar Mills P. Ltd J Kanhayalal Bhargavas, 1966 SCC OnLine SC 215 a two-judge Bench of this court, speaking through justice K. Subba Rao (as the learned chief justice then was), opined See page 45 of 37 Comp Cas. "Having regard to the said decisions, the scope of the inherent power of a court under section 151 of the Code may be defined thus: The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in 23 respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of section 151 of the Code, they do not control the undoubted power of the court conferred under section 151 of the Code to make a suitable order to prevent the abuse of the process of the court.” (emphasis supplied) 70. When a procedure has been prescribed for a particular purpose exhaustively, no power shall be exercised otherwise than in the manner prescribed by the said provisions. In such cases, the court must be circumspect in invoking its "inherent powers" to deviate from the prescribed procedure. If such deviation is made, the court must justify why this was necessary to "prevent the abuse of the process of the court.” 17. If proper procedure has not been followed and due opportunity of hearing has not been granted, then such type of order cannot be confirmed. In the present case, none of the procedures as envisaged under Rule 7 of ‘the Rules 1999’ has been followed which is apparent from the notice as well as the impugned order. Time and again the Hon’ble Supreme Court as well as this Court has passed several judgments while indicating that the Rules as prescribed are not meant only to see the same they are required to be followed. 18. Further, the learned Commissioner, in passing the impugned order, appears to have ventured beyond his revisional jurisdiction. Rather than confining the examination to procedural and jurisdictional correctness of the earlier orders, the Commissioner undertook an 24 assessment of the qualification of petitioner de novo, without any evidentiary foundation and without affording the petitioner an opportunity to respond to such reassessment. In doing so, the Commissioner usurped a role more akin to that of an original fact- finding authority, which is not contemplated under the scheme of revisionary powers. Such exercise of authority without jurisdiction or procedural safeguards amounts to a denial of justice and cannot be sustained under Article 226 scrutiny. It is also noteworthy that the petitioner, despite this prolonged litigation and administrative uncertainty, has continued to render his duties as a teacher without interruption. There are no adverse remarks against him in terms of conduct, performance, or integrity. The service rendered by him over nearly two decades must be given due consideration while balancing the equities. To allow a technical defect or procedural lapse in interpretation of a qualification to nullify such longstanding service would be an unjust and disproportionate consequence, especially when the fault lies not with the petitioner but with the appointing authorities who accepted his certificate at the threshold and allowed him to continue in employment for years. 19. Accordingly, this Court is constrained to hold that the impugned order dated 22.06.2023 passed by the Commissioner, as well as the underlying orders dated 07.08.2007 and 08.02.2010, are vitiated by legal infirmities, procedural unfairness, and arbitrariness. However, mindful of the principle that illegality in initial appointment, if any, cannot be perpetuated indefinitely, accordingly, the initial order dated 07.08.2007 of removal of petitioner from service issued against the 25 petitioner is held to be illegal and it is accordingly quashed. Resultantly, the subsequent order dated 08.02.2010 and 22.06.2023 are also quashed. However, this Court is of the view that the appropriate course of action is not to issue a blanket endorsement of the appointment of petitioner, as such, the competent authority is at liberty to initiate proceedings afresh, if so advised, in accordance with Rule 7 of the 1999 Rules and in adherence to the principles of natural justice and to pass appropriate order after following due process in accordance with law. Shayna Sd/- (Amitendra Kishore Prasad) JUDGE