2025:CGHC:9723 HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(S) No. 4812 of 2015 Sandeep Mishra, S/o Shri D.N. Sharma, aged about 28 Years, R/o Badadeep Singh, Nagar, Plot No. 139, Street Pole No. 257, Bhilai, Police Station Supela, District Durg Chhattsigarh ---- Petitioner Versus 1. State of Chhattisgarh Through The Secretary, Department of Social Welfare, Mantralaya, Mahanadi Bhawan, Police Staiton Rakhi, Naya Raipur Chhattsigarh, 2. Director, Directorate of Social Welfare, Government of Chhattisgarh, D.K.S. Bhawan, Compound Raipur Chhattsigarh, 3. Superintendent, Sankalp, Special Govt. School For Mentally, ill / Retarded Boys And Girls Rajnandgaon, Chhattisgarh --- Respondents For Petitioner : Shri Sharad Mishra, Advocate. For Respondents / State : Shri Sanjeev Pandey, Dy. Advocate General. Hon'ble Shri Justice Sachin Singh Rajput Order on board 19/06/2025 1. This writ petition under article 226 of the Constitution of India has been filed by the petitioner seeking for the following relief : (1) That the Hon'ble Court may kindly be pleased to issue writ of certiorari and quash the impugned order dated 21-07-2015 (Annexure P-5) issued ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.06.27 12:13:59 +0530 -2- by respondent no.2 as being arbitrary, illegal and against the principle of natural justice.; (2) That the Hon'ble Court may kindly be pleased to direct the respondent no. 2 to re-instate the petitioner in the post of watchman; (3) That any other order which the Hon'ble Court deem fit in the interest of justice and equity may kindly be granted. 2. Facts which emerges from the pleadings are that vide order bearing no. Estt./Bou.M.Vi./01/2014 dated 03-01-2014, issued by the Superintendent 'SANKALP', Special Govt. School for Mentally Retarded Girls and Boys, Rajnandgaon (C.G.), the petitioner was appointed on the post of watchman for taking care of the mentally ill/retarded Boys and Girls. After that on 28-02-2014, the term of service of the petitioner in the post of watchman was extended for the period of 01 year. All of sudden on 21-07-2015 vide order bearing no. Estt/2/2013/2015/1135, services of the petitioner was terminated by the Director, Social Welfare Department, Chhattisgarh, without giving any show cause notice or providing any opportunity of being heard to the petitioner. 3. It is also pleaded that the termination was made in accordance with the aforementioned order, but, after the passing of the termination order, no employment benefits were accorded to the petitioner such as Employee Provldent Fund, Employee State Insurance Scheme or any other benefits for which deductions were made regularly from employee's salary. 4. It is also pleaded that the petitioner was appointed on the post of watchman vide order dated 03-01-2014 (Annexure P-1), thus it is very clear that the appointment of the petitioner was made as per the Chhattisgarh Panchayat and Social Welfare (Class-IV) Service Recruitment Rules, 2008 (for short Rules of 2008). It is very clearly mentioned in the Schedule-I of the Rules of 2008 that appointing authority for the post of watchman is the Head of the Institution i.e. the Superintendent. -3- 5. It is further pleaded that in the termination order, it is specified by the respondent no.2, that the termination was made as per the Chhattisgarh Social Welfare (Class-IV) Service Recruitment Rules, 2014 (for short Rules of 2014). But it is to be mentioned here that the termination order was issued on 21-07-2015 and the Rule of 2014 was notified in the Official Gazette on 26th September, 2014. Therefore, the Rule of 2014 will not be applicable in case of the petitioner and the impugned termination order is liable to be set aside being made in contravention of the rules formulated by the State Govt. Since, the respondent no.2 is not the appointing authority as per the Rules of 2008, it has no power to terminate the petitioner. 6. Further pleadings reflects that the petitioner has preferred this writ petition as the impugned order has been issued without affording an opportunity of hearing to the petitioner, which clearly violates the principle of natural justice enshrined, therefore, it is liable to be quashed at once. 7. Learned counsel for the petitioner made two fold submissions. Firstly, he submits that according to the impugned order Annexure P/5, the petitioner was removed from the service on the ground that the appointing authority was incompetent in light of the Rules of 2014 and therefore, the appointment order was bad in law. The other reason assigned in the impugned order is that against the appointment of the petitioner certain complaints were received and direction contained in circular of the Finance Department bearing No. 170/B-4/चार/2014, dated 02/05/2014 was not followed. He submits that both the grounds which are mentioned in the impugned order cannot sustain. He submits that the reliance placed on circular dated 02/5/2014 cannot be made, as the appointment of the petitioner has been made on 03/01/2014 against the vacant post and therefore the reasons assigned in the impugned order are without any substance. He submits that according to the impugned order, certain complaints were received that the appointment is not accordance with the Recruitment Rules and Reservation Roster has also not been followed. He submits that no inquiry has -4- been conducted by the respondents before passing such an order. He further submits that the Rules of 2014 which have been relied upon by the respondents while removing the petitioner from service came into force on 26th September, 2014 whereas prior to that the appointment of the petitioner had already taken place. He submits that appointment of the petitioner had taken place in accordance to the Rules of 2008 and according to the Schedule appended for appointment on the post of Watchman, the post on which the petitioner was appointed upon is related to office Institution Head. The petitioner was appointed in the Special Govt. School For Mentally, ill / Retarded Boys and Girls and appointment order was issued by the Superintendent who is the head of the Institution. Therefore, it cannot be said that the appointment order of the petitioner was issued by any incompetent authority. Even otherwise, referring to Annexure P/7 i.e. an order was passed by the respondent No.1 in which the name of the petitioner was also finding place, which shows that administrative approval has also been obtained. He also drew attention of this Court to Annexure P/6 by which financial approval for the post of Watchman was also granted by the respondent No.1. Second limb of his arguments is that the petitioner joined his services acting upon appointment order Annexure P/1 and therefore a right has been created in his favour. He submits that before passing the impugned order Annexure P/5 dated 21/07/2015, no opportunity of hearing was granted nor any show cause notice was issued to the petitioner which is in violation of principle of natural justice and principle of audi alteram partem has not followed. To buttress his submissions he placed reliance upon the judgment of the Hon’ble Supreme Court of V.P. Ahuja Vs. State of Punjab reported in (2003) 3 SCC 229 and Basudeo Tiwary Vs. Sido Kanhu University & Ors. reported in (1998) 8 SCC 1994 and judgment passed by this Court in case Dr. Shruti Khare Vs. State of Chhattisgarh reported in 2022 SCC Online Chh 108. He thus prays that the writ petition may be allowed and the impugned order Annexure P/5 may be set aside reinstating the petitioner in service. -5- 8. Per contra, State Counsel supported the impugned order and submits that certain complaint was received and reservation roster has not been followed and the appointing authority was not competent to issue appointment order and the respondent No. 2 was the appointing authority according to Rule of 2014. He made further submission in light of return submitted by the respondent / State. 9. Heard learned counsel for the parties and perused the records. 10.The appointment order of the petitioner was issued on 03/01/2014 by the respondent No. 3 who is the Superintendent of the Institutions where the petitioner was appointed on the post of Watchman. The impugned order Annexure P/5 indicates that the appointment order was not made according to the Rules of 2014 and the appointing authority was not competent to issue the appointment order. The Rules of 2014 is appended as Annexure P/4 which indicates that it was published on notification of official Gazette on 26th September, 2014. Annexure P/3 is the Rules of 2008 and no one is in a position to dispute that prior to Rules of 2014, Rules of 2008 were in existence which deals with the recruitment and appointment made of the employees. According to the schedule appended with the Rule of 2008, the head of the Institution is the competent authority for making appointment on the post of Watchman of the Institution. Clause – 6 at Serial No.6 of the schedule appended to Rules of 2008 indicates that such appointment is to be made by direct recruitment. Admittedly, the rules which were relied upon for removing the petitioner from the service came into force from the date of its publication in Official Gazette i.e. 26th September, 2014. Prior to that Rules of 2008 was prevailing. Therefore, the reasons assigned in the impugned order cannot be sustained in the scrutiny of this Court as the respondent No.3 was a competent authority to issue appointment order in favour of the petitioner. Though, another reason has been assigned in the impugned order that reservation roster has not been followed and complaint was received and the circular of the Finance Department dated 02/05/2014 has not been followed, but this cannot be done in light of the fact that -6- the circular was issued on the 02/05/2014 and the appointment order was issued prior to that and from the return of the respondent / State it doesn’t appear that any copy of the inquiry conducted against the petitioner with regard to any complaint made against the appointment order is appended. Even otherwise, if such an enquiry was conducted it was essential that the respondents apprise the petitioner with regard to the complaint so made. 11. This leads me to the second submission as to whether the impugned order can sustain on the violation of principle of natural justice and not adhering to the principle of audi alteram partem. Time and again the Hon’ble Supreme Court has held that any administrative action of the State authorities which has a civil consequences, the affected person ought to have been given an opportunity of hearing and principle of natural justice has to be followed and principle of audi alteram partem be adhered to. 12.The Hon’ble Supreme Court in the case of V. P. Ahuja (Supra) in paragraph- 7 held as under :- “7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminatcd in a punitive manner without complying with the principles of natural justice” 13. The Hon’ble Supreme Court in the case of Basudeo Tiwary (Supra) in paragraph- 9 held as under :- “9.The law is settled that non-arbitrariness is an essential facet of Article l4 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem Tacet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is Well settled that any action taken by the employer against an employee must De Tair, just and reasonable which are the components of fair treatment. -7- 14.The Hon'ble Supreme Court in the case of Prakash Ratan Sinha v. State of Bihar and others reported in (2009) 14 SCC 690 on an issue dealing with the doctrine of 'Equality and Fair Play' and also the principles of natural justice has in paragraph Nos. 9 and 13 held as under:- 9. The respondent is an instrumentality of the State, and therefore, all its administrative decisions would be subject to the doctrine of equality and fair play, as incorporated in Articles 14 and 21 of the Constitution of India. If any of its actions or administrative decisions result in civil consequences, the actions or decisions could be judicially reviewed or tested on the anvil of principles of natural justice. This principle of law has been laid down by this Court in catena of cases. 13.The law in this regard has been settled by several decisions of this Court. The principle that emerge from the decisions of this Court is that, if there is a power to decide and decide detrimentally to the prejudice of a person, duty to act judicially is implicit in exercise of such a power and that the rule of natural justice operates in areas not covered by any law validly made." 15.Hon'ble Supreme Court in the case Canara Bank and others v. Debasis Das and others reported in (2003) 4 SCC 557, in paragraph No. 19 has held as under:- “9. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.” -8- 16.Reiterating the same principles the Hon'ble Supreme Court again dealing with the same issue in the case of Rajasthan State Road Transport Corporation and another v. Bal Mukund Bairwa (2) reported in (2009) 4 SCC 299 in paragraph Nos. 35, 44 and 47 has held as under: “35. Any order passed in violation of the principles of natural justice save and except certain contingencies of cases, would be a nullity. In A.R. Antulay (supra), this Court held: "55.........No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity." 47. The purpose of principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is the pragmatic requirement of fair play in action. (See Sawai Singh vs. State of Rajasthan [(1986) 3 SCC 454], Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors. [(2006) 4 SCC 713]}” 17.This Court in case of Dr. Shruti khare Vs. State of Chhattisgarh reported in 2022 SCC Online Chh 108 in paragraph -11 has held under :- “11. In administrative law, the principle of audi alteram partem has been held to be a fundamental principle of the rules of natural justice. This requires the maker of a decision to give prior notice of the proposed decision to the persons affected and an opportunity to make representation. An administrative order involving civil consequences must necessarily be made in conformity with rules of natural justice. Any decision which has been made without compliance of the aforementioned fundamental principle of natural justice i.e. the rule of audi alteram partem, cannot be sustained” 18.In light of above authoritative pronouncement before taking any drastic step of removal of the service of the respondent, it was incumbent upon the respondents to follow the principle of natural justice adhering to principle of audi alteram partem. A pointed query was raised from the State Counsel as to whether before -9- passing the impugned order, whether any show cause notice was issued or principle of natural justice was followed. He is unable to state before this Court that and such action has been taken by the respondents / State. In light of discussion made here-in- above, writ petition deserves to be and is hereby allowed. Impugned Order Annexure P/5 is hereby set aside. The petitioner is directed to be reinstated in service. 19. At this stage Shri Mishra, Advocate prays that petitioner may be granted liberty to raise issue of back wages before the respondents. Such liberty is reserved in favour of petitioner. Sd/- (Sachin Singh Rajput) Judge Ashish