1 2025:CGHC:58988 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2853 of 2023 1 - Ku. Radhika Naidu D/o Late Dallya Naidu Aged About 48 Years Ex Peon Government Asthi Baditarh Balgrih Jagdalpur Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Social Welfare, Mahanadi Bhawan, Naya Raipur Chhattisgarh 2 - The Commissioner Bastar Division Jagdalpur District Bastar Chhattisgarh 3 - The Collector (Social Welfare) Jagdalpur, District - Bastar Chhattisgarh 4 - The Superintendent Government Dristhi Evam Shravan Badhitarth Vidyalay Jagdalpur District - Bastar Chhattisgarh 5 - Smt. Khatun Bi, Rasoia Office Of Superintendent Government Dristhi Evam Shravan Badhitarth Vidyalay Jagdalpur District - Bastar Chhattisgarh 6 - Shri Sukhlal Kashyap Dainik Vetan Bhogi Chowkidar, Office Of Government Asthi Baditarh Balgrih Jagdalpur Chhattisgarh RAGHVENDRA JAT Digitally signed by RAGHVENDRA JAT 2 7 - Ku. Urmila Kashyap Dainik Vetan Bhogi Aaya, Office Of Government Asthi Baditarh Balgrih Jagdalpur Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Shobhit Koshta, Advocate. For Respondent(s)/ State : Mr. Sakib Ahmed, Panel Lawyer. Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 04/12/2025 1. By way of this petition, the petitioner has prayed for following reliefs:- “A That, this Hon'ble Court may kindly be pleased to call for the entire records relating to the matter of petitioner for the kind perusal of this Hon'ble Court. B. That, this Hon'ble Court may kindly do issue in the nature of Writ of Cetitioury or any other appropriate Writ and set aside the order dated 20-02-2023 (P-13) passed by the learned Commissioner Bastar Division Jagdalpur District Bastar (CG) (R-2) passed in Departmental Appeal Case No 202209950100006/ब-121/ 2021-22 and order dated 12- 08-2022 (P12) passed in order number 2525/स्थापना / ना.क.-48/2022-23 learned Collector District Bastar (CG) (R-3). 3 C. That, this Hon'ble Court may kindly do issue in the nature of Wirt of Mandamus or any other appropriate Writ and direct the respondent authority to reinstate the petitioner on service. D Any other relief, which may be suitable in the fact's of the case, may also be granted.” 2. Brief facts of the case, is that, the petitioner was appointed as a peon in the Government Asthi Baditarh Balgrih, Jagdalpur (C.G.) in October 2010 and had been discharging her duties honestly since her initial appointment; however, she was terminated from service on the basis of allegations that she used to take grocery items such as soap, oil, body lotion, etc., purchased for the children, to her house, and that she allegedly took children of the institution to her home and compelled them to perform household work. Acting upon these allegations, the department initiated a departmental enquiry, and respondent No. 3, by order dated 12.08.2022 bearing No. 2525/स्थापना/ना.क.-48/2022-23, imposed punishment upon her, against which she preferred Appeal Case No. 202209950100000/-121/2021-22 before respondent No. 1, but the same was dismissed on 20.02.2023, leading to the filing of the present petition. Earlier, in 2015, a similar false complaint was lodged against the petitioner alleging misappropriation of grocery items meant for the children, resulting in her suspension and initiation of departmental proceedings by respondent No. 4 at the 4 direction of respondent No. 3; the petitioner challenged the suspension order before this Hon’ble Court in WPS No. 1942/2015, which was disposed of by order dated 16.06.2015 granting liberty to pursue the statutory departmental appeal, whereupon she was reinstated, though subsequently punished on 07.04.2018 by withholding one increment with cumulative effect. Again, in 2019, respondents No. 5 to 7 filed a fresh complaint of a similar nature, alleging misappropriation of grocery items and exploitation of children, leading to her suspension on 22.01.2020; the petitioner once more approached this Hon’ble Court in WPS No. 3940/2020, which was disposed of on 07.10.2020 with a direction to reinstate her. Although she was reinstated and participated in the departmental enquiry by submitting her reply denying all allegations and asserting false implication at the behest of respondents No. 5 to 7, respondent No. 4 failed to consider her defence and proceeded with the enquiry in violation of the provisions of the Civil Services (Classification, Control and Appeal) Rules, 1966, resulting in an illegal order of punishment. The petitioner thereafter preferred appeals before various authorities as per law, but all her efforts proved futile, compelling her to file the present petition. 3. Learned counsel for the petitioner submits that the impugned order dated 12.08.2022, passed by the Collector, District-Bastar, whereby the services of the petitioner have been terminated, is wholly without jurisdiction and non-est in the eyes of law. It is 5 contended that, in terms of the provisions contained in the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966, the petitioner, who is serving as a Peon in the office of the Superintendent, Asthi Baditarh Balgrih, Jagdalpur (C.G.) and holds a Class-IV post, falls outside the disciplinary control of the Collector. Therefore, the Collector is not the competent disciplinary authority empowered to initiate or impose any major penalty upon the petitioner, and consequently, the impugned order suffers from inherent lack of authority and deserves to be set aside.. He has placed reliance upon the judgment passed by the Co-ordinate Bench in the matter of Padamdhar Prasad Pandey vs. State of Chhattisgarh & Ors passed in WPS No. 3025/2018. 4. On the other hand, learned counsel for the State opposes the same. 5. I have heard learned counsel for the parties and perused the material available on record. 6. The service condition of the petitioner is governed by the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966. Rule 8 deals with Appointments to other service and posts and Rule 24 deals with Appellate authorities. Rule 8 and 24 are extracted below:- 8. Appointments to other service and posts which - All appointments to the State Civil Services Class III and Class IV, shall be made by the authorities specified in this behalf in the Schedule. 6 24. Appellate authorities. - (1) A Government servant including a person who has ceased to be in Government service, may prefer an appeal against all or any of the orders specified in Rule 23 to the authority specified in his behalf either in Schedule or by a general or special order of the Governor or, where no such authority is specified; (i) where such Government servant is or was a member of a State Civil Service Class I or Class II or holder of a State Civil Post, Class I or Class (a) to the appointing authority, where the order appealed against is made by an authority subordinate to it; or (b) to the Governor, where such order is made by any other authority, where such Government servant is or was a member of a State Civil Service Class III or Class IV or holder of a State Civil Post, Class III or Class IV, to the authority to which the authority making the order appealed against is immediately subordinate. (2) Notwithstanding anything contained in sub-rule (1),- (i) an appeal against an order in a common proceeding held under Rule 18 shall lie to the authority to which the authority functioning as the disciplinary authority for 7 the purpose of. that proceeding is immediately subordinate; (ii) where the person who made the order appealed against becomes by virtue of his subsequent appointment or otherwise, the appellate authority in respect of such order, an appeal against such order shall lie to the authority to which such person is immediately subordinate. 7. As per the Schedule annexed with Chhattisgarh Civil Services (Classification, Control and Appeal) Rules the petitioner is working as Class IV employee with the Panchayat and Social Welfare Department his appointing authority is Dy. Director, Panchayat as defined in Rule 24 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules. Thus, Collector has not been given power to appoint the petitioner or to take disciplinary action. These Rules have been made under Article 309 of the Constitution of India which has overriding effect. The Rules framed by the State in its statutory powers will prevail over the executive instructions. This issue has been considered by the Hon’ble Supreme Court in catena of decisions. 8. The issue with regard to prevailing of Rules made under statutory power with executive instruction has come up for consideration before the Hon’ble Supreme Court in catena of decisions in B.N. Nagrajan v. State of Mysore, AIR 1966 SC 1942; Sant Ram 8 Sharma v. State of Rajasthan and Ors., AIR 1967 SC 1910; Union of India and Ors. v. Majji Jangammyya and Ors., AIR 1977 SC 757; B.N. Nagarajan and Ors. v. State of Karnataka and Ors., AIR 1979 SC 1676; P.D. Agrawal and Ors. v. State of U.P. and Ors., (1987) 3 SCC 622; M/s. Beopar Sahayak (P) Ltd. and Ors. v. Vishwa Nath and Ors., AIR 1987 SC 2111; State of Maharashtra v. Jagannath Achyut Karandikar, AIR 1989 SC 1133; Paluru Ramkrishananiah and Ors. v. Union of India and Ors., AIR 1990 SC 166; Comptroller and Auditor General of India and Ors. v. Mohan Lal Malhotra and Ors., AIR 1991 SC 2288: State of Madhya Pradesh v. G.S. Dall and Flour Mills, AIR 1991 SC 772; Naga People's Movement of Human Rights v. Union of India and Ors.. AIR 1998 SC 431: C. Rangaswamacah and Ors. v. Karnataka Lokayukta and Ors, AIR 1998 SC 96.] 9. It is also well settled position that executive instructions cannot amend or supersede the statutory rules or add something therein, nor the orders can be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory Rule nor does it have any force of law; while statutory rules have full force of law provided the same are not in conflict with the provisions of the Act. (Vide State of U. P and Ors. v. Babu Ram Upadhyaya, AIR 1961 SC 751; and State of Tamil Nadu v. M/s. Hind Stone etc., AIR 1981 SC 711). 10. Again Hon’ble Supreme Court in Union of India v. Sri Somasundaram Vishwanath, AIR 1988 SC 2255, observed that if 9 there is a conflict between the executive instruction and the Rules framed under the proviso to Article 309 of the Constitution, the Rules will prevail. Similarly, if there is a conflict in the Rules made under the pro- viso to Article 309 of the Constitution and the law, the law will prevail. Similar view has been reiterated in Union of India v. Rakesh Kumar, AIR 2001 SC 1877; Swapan Kumar Pal and Ors. v. Samitabhar Chakraborty and Ors., AIR 2001 SC 2353; Khet Singh v. Union of India, (2002) 4 SCC 380; Laxminarayan R. Bhattad and Ors. v. State of Ma- harashtra and Anr., (2003) 5 SCC 413; and Delhi Development Authority v. Joginder S, Monga, (2004) 2 SCC 297, observing that statutory rules create enforceable rights which cannot be taken away by issuing executive instructions. 11. In Ram Ganesh Tripathi v. State of U.P., {AIR 1997 SC 1446}, the Hon'ble Supreme Court considered a similar controversy and held that any executive instruction/ order which runs counter to or is inconsistent with the statutory rules cannot be enforced, rather deserves to be quashed as having no force of law. The Hon'ble Supreme Court observed as under: "They (respondents) relied upon the order passed by the State. This order also deserves to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblige the respondents and similarly situated ad hoc appointees." 10 12. Thus, in view of the above, it is evident that executive instructions cannot be issued in contravention of the Rules framed under the proviso to Article 309 of the Constitution and statutory rules cannot be set at naught by the executive fiat. 13. Accordingly, the impugned order dated 12.08.2022 passed by the Collector, as well as the subsequent order dated 20.02.2023 passed by the Commissioner, are hereby set aside. As a consequence, the petitioner is directed to be reinstated in service forthwith, and she shall be entitled to all consequential benefits arising from such reinstatement. However, so far as back wages are concerned, it is directed that the petitioner shall be paid 50% of the back wages for the period during which she remained out of service pursuant to the termination. 14. With the aforesaid observation and direction, the writ petition is allowed. SD/- (Amitendra Kishore Prasad) Judge Raghu Jat