Smt.anita Sharma Vs State Of Chhattisgarh And Ors.

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2024:CGHC:29945

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Digitally signed by A A ANNAJEE RAO WPS No. 6106 of 2014 ANNAJEE Date: RAO 2024.08.12 18:12:29 +0530

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Smt.Anita Sharma W/o Prashant Kumar Sharma Aged About 35 Years R/o Lailunga Tah. Lailunga Govt. Middle School Lailunga Teacher Nagriya Nikay Ps. Lailunga Civil and Rev. Dist. Raigarh, Chhattisgarh .. .. Petitioner

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versus

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State of Chhattisgarh through the Secretary Nagriya Prashasan and Development Department Mahandi Bhawn Naya Raipur Dist. Raipur Chhattisgarh.

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Commissioner Nagriya Prashasan Raipur District : Raipur, Chhattisgarh.

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Collector Raigarh District : Raigarh, Chhattisgarh

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Assistant Commissioner Tribal Development Raigarh District : Raigarh, Chhattisgarh

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Chief Municipal Officer Nagar Panchayat Lailunga Dist. Raigarh District : Raigarh, Chhattisgarh .. ... Respondents

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For Petitioner : Mr. Awadh Tripathi, Advocate For State/Respondents 1 to 4 : Ms.Anuradha Jain & Mr. Abhishek Singh, P.Ls. For respondent No. 5 : Mr. N. Naha Roy, Advocate

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(GOUTAM BHADURI, J)

Order on Board

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08/08/2024

(1) The present petition is filed to quash the termination order dt.20.11.2014 issued by the Nagar Panchayat, Lailunga by Annexure P-1(A) in respect of the petitioner who was appointed on 22.02.2014 (Annexure P-2). The petitioner after being appointed as Shikshak in arts, was posted in the local body school of Lailunga and accordingly she joined her service by Annexure P-2. Subsequently she was served with a letter dated 17.11.2014 (Annexure P-1) wherein she was asked to submit TET and B.Ed., pass certificates as it was not enclosed. In reply to it, the petitioner stated by Annexure P-7 dated 18.11.2014 addressed to Chief Municipal Officer, Lailunga that at the time of appointment, no such condition was stipulated and since she has not passed out, she would not be able to produce documents and she may be allowed to pass out the said examination within certain time. Subsequently, by order dated 20.11.2014 issued by CMO, Nagar Panchayat Lailunga the services were terminated.

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(2) The submission is made that while the advertisement was made which was prior to promulgation of the Rules called as Chhattisgarh Shikshak (Nagar Nikai) Samwarg (Bharti and Shartaon) Niyam, 2013, on 08^th March, 2013, the advertisement was already made. Pursuant thereto, the selection process has commenced much prior to March, 2013 and subsequently when the rule was promulgated, the same could not be made applicable to the petitioner and the termination was made without there being any opportunity of hearing. Therefore, the doctrine of audi alteram partem was completely sidelined. The petitioner submits that during the course of hearing before this Court since specific averment was made and format of advertisement of 08.05.2013 was produced and the respondents were directed to place on record the original advertisement on the basis of which the petitioner was appointed, the respondent came out with a reply that the documents pertaining to the same are missing. He refers to the order sheets of this Court dated 09.07.2014 & 16.07.2014 and submits that the CMO categorically made statement that the documents so called for are missing. Subsequently the bunch of documents was produced by counsel of respondent

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no.5 with a covering memo. It is submitted that neither the documents have been supplied by the CMO nor there any authenticity can be attached and even otherwise they are not relevant to the present appointment. He submits that the then CMO namely C.P. Shrivastava has orchestrated the entire issue to extend favour to some people and subsequently, his services have been terminated. Therefore, looking to the manner in which the termination was effected, the petitioner is entitled for reinstatement.

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(3) Per contra, learned counsel for respondent no.5 who is the main contestant would submit that the Rules of 2013 came into being on 8^th March 2013 which mandates that apart from other qualification, in order to get an appointment a candidate should possess Teachers Eligibility Test Certificate and since the petitioner was appointed subsequent to promulgation of Rules and she was not holding the necessary qualification, her services were rightly terminated. Learned State Counsel supports the contention of respondent no.5.

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(4) The main question which falls for consideration is as to what was the nature of advertisement whether it was published prior to the promulgation of Rules of 2013 made on 08.03.2013. In order to find out the same the respondents were time and again asked to place on record to show that on the basis of which advertisement their recruitment process started and eventually concluded. The petitioner has vociferously stated that the said Rules of 2013 was not in existence while the advertisement was made as it was prior to 08.03.2013 whereas the stand of respondent no.5 was that since the appointment was made subsequent to promulgation of Rule 2013, the the petitioner was rightly terminated. If it is the case of petitioner that advertisement was made prior to March 2013 and the nucleus of the dispute starts therefrom, in such situation, it was obligatory on the part of respondent no.5 to place on record the nature of advertisement and the date thereof.

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(5) The order sheets of this Court dated 09.07.2024 and 16.07.2024 would be relevant wherein during hearing the court mooted all efforts to surface the advertisement. The order is reproduced as under :

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Order dated 09.07.2024

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“ Shri Awadh Tripathi, Advocate for the petitioners.

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Ms. Anuradha Jain and Shri Abhishek Singh, Panel Lawyers for the State.

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Smt. Mamta Choudhary, Chief Municipal Officer, Nagar Panchayat, Lailunga, District Raigarh, is also present in person before the Court.

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Heard.

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Learned counsel for the petitioners would submit that the appointment of the petitioners were terminated, however, likewise persons were also appointed but their services are still continuing and the deliberate cherry picking has been made.

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Learned counsel for Respondent no.5, on instructions, would submit that the file relating to issuance of advertisement, pursuant to which the petitioners were appointed, is not available and they are searching for it.

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In order to appreciate the fact the advertisement when was made for appointment of the present petitioner, whether it was prior to 08.03.2013 when the Rules of 2013 came to fore, would be a relevant fact. The petitions since were filed in the year 2014 it was expected that the documents which have a germane to the issue should have been saved and non-production of the documents may lead to adverse inference and withholding the documents may cause hindrance in proper administration of justice. Since the Court was inclined to pass the order on merits, however, at the request of Shri N.Naha ?Roy, learned Counsel for Respondent no.5, short time is granted.

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As prayed, list it on 16^th of July, 2024.

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It is made clear that on that date the document/advertisement on which the appointment for the petitioners were made, shall be placed on record.”

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Order dated 16.07.2024 is reproduced hereinbelow :

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16.07.2024

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“ Mr. Awadh Tripathi, counsel for the petitioners. Mr. Rahul Tamaskar, Govt. Advocate, for the State. Mr. N. Naha Roy, counsel for respondent no.5.

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Mrs. Mamta Choudhary, CMO, Nagar Panchayat, Lailunga, District Raigarh is also present in person before this Court.

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Learned counsel appearing on behalf of respondent no.5 tried to hand over certain bunch of documents.

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On serious objection being raised by learned counsel for the petitioner about the receipt of documents by learned counsel for respondent no.5, the present CMO, Mrs. Mamta Chaudhary, who is present in the Court was asked as to who has supplied the documents to the counsel. In response to the said question, she has straight-away stated that these documents have not been handed over by her.

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Under the circumstances, when counsel for respondent

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no.5 has been specifically asked as to who has handed over the documents, he states that though earlier he has stated that it has been handed over by her but after her statement, counsel changed his stand and stated that those documents were handed over by Mr. C.P. Shrivastava, who was the then CMO.

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At this stage, learned counsel for the petitioners would submit that certain documents obtained by the petitioners under RTI Act have been filed wherein Mr. C.P. Shrivastava has reported that the documents pertaining to selection of 2011-2013 have been lost, for which, a report was made to the Police.

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Since the documents so filed has not reached to this Court, list it in the next week.”

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(6) A perusal of the order would show that when serious scathing attack was made by the petitioner that the act of respondent no.5 the CMO finds favour, the Court observed that it would be a relevant fact to appreciate as to whether the advertisement was made prior to 08.03.2013 and the counsel was asked to place the same on record. On 16.7.2014, the CMO was present and the allegations were clamped that some documents have been personally handed over to the counsel representing respondent no.5. When she was confronted whether such documents were given, she denied and stated that she has not given any documents to him. Therefore, the question crops up as to who has supplied the documents. During such discourse, name of C.P. Shrivastava, who was the then CMO came to fore and subsequently it appears that certain bunch of documents with covering memo without any affidavit have been filed that too the letter was addressed to one Lucky Kesaria of Lailunga. The documents cursorily when are travelled through, there is nothing on record to show that it was in any way related to the appointment of the petitioner as the receipts of the application do not disclose the same. How the document was filed before the Court, remains as question which needs investigation. Firstly, the documents are filed without any affidavit and the source of it has also not been established by way of affidavit. If the documents form part of officials records, relevant documents ought to have been produced either by respondent no.5 or by the State Authorities. If the issue was before the High Court in respect of an appointment which touches upon further proceedings then the particulars of advertisement showing the date of its publication etc., are of utmost important to the issue in controversy and when such

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material document is not produced from the custody of respondent, the doctrine of adverse inference is required to be drawn. In this regard, the Supreme Court in the matter of Union of India v. Ibrahim Uddin (2012) 8 SCC 148 held thus at Para 12 :

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Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide: Murugesam Pillai v. Manickavasaka Pandara; Hiralal v. Badkulal, A. Raghavamma v. A. Chenchamma; Union of India v. Mahadeolal Prabhu Dayal; Gopal Krishnaji Ketkar v. Mohammed Haji Latif; BHEL v. State of U.P, Musauddin Ahmed v. State of Assam; and Khatri Hotels (P) Ltd v. Union of India.”

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(Emphasis Supplied)

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(8) The Supreme Court in yet another case – Ajay Kumar D. Amin v. Air France

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(2016) 2 SCC 566 held thus :

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“7. Again in support of the said proposition, the

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Commissioner for Taking Accounts rightly placed reliance upon the judgment of this Court in Gopal Krishnaji Ketkar v. Mohd. Haji Latif, wherein this Court held that under Sections 114(g) and 103 of the Evidence Act, 1872, a party in possession of best evidence which throws light on the issue in controversy withholding it, the Court ought to draw an adverse inference against it notwithstanding that onus of proof does not lie on him and the party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it.”

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(9) Now coming back to the other aspect, the petitioner had made his specific averment that while the advertisement was made prior to the date of promulgation of Rules of 2013, no such condition was stipulated for such appointment requiring the the candidate to possess TET/B.Ed. certificate, therefore, the respondent when failed to produce the advertisement, by drawing doctrine of adverse inference as has been stated supra, it can be presumed that the rule of game cannot be changed after the selection process is over. This proposition is down by the Supreme Court in Bishnu Biswas Versus Union of India (2014) 5 SCC 774 wherein at Para 19 the Court held thus:

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“19. In the instant case, the rules of the game had been changed after conducting the written test and admittedly not at the stage of initiation of the selection process. The marks allocated for the oral interview had been the same as for written test i.e., 50% for each. The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency. The candidate who secured 47 marks out of 50 in the written test had been given only 20 marks in the interview while a large number of candidates got equal marks in the interview as in the written examination. Candidate who secured 34 marks in the written examination was given 45 marks in the interview. Similarly, another candidate who secured 36 marks in the written examination was awarded 45 marks in the interview. The fact that today the so-called selected candidates are not in employment, is also a relevant factor to decide the case finally. If the whole selection is scrapped most of the candidates would be ineligible at least in respect of age as the advertisement was issued more than six years ago.”

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(10) Further more, the initial appointment of petitioner was made by order dated 22.2.2014 (Annexure P-2) and subsequently without conducting any enquiry, her services was dispensed with by order dated 20.11.2014 for not producing the qualifying certificates of TET & B.Ed though the advertisement containing the said stipulation as condition precedent was not produced before the Court. It appears that without giving any opportunity of hearing to the petitioner to defend her case and without conducting any enquiry, termination simplicitor was done inflicting major punishment of termination of service. Thereby the rule of Audi Alteram Partem is completely given a go-bye and further it casts a stigma to the petitioner for being not qualified. The defence of respondent no.5 cannot be presumed unless relevant documents are placed on record and despite repeated opportunity time and again, same was not placed along with relevant note sheets. Though the CMO has stated that the documents are missing, yet fumble efforts were made and Respondent No.5 tried to camouflage the entire issue by filing a documents under covering memo without any affidavit. That would not come to the aid of respondent No.5

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(11) In view of the aforesaid finding, the order dated Annexure P-1(A) dated 20.11.2014 issued by respondent no.5 is quashed/set aside. The petitioner is directed to be reinstated with all back-wages. Further more since contradictory statements have been made before this Court and certain documents were tried to

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be pushed in official records which prima facie appears has no relevancy , the investigation is required to be conducted to find out the source of documents and the author who supplied. The Concerned CMO may hold an enquiry to ascertain the fact and he would be free to bring the culprit to the books of Police, if need be.

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(12) Accordingly, the petition stands disposed of with the above observations/

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direction.

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Sd/({GOUTAM BHADURI}) JUDGE

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Rao

Smt.anita Sharma v. State Of Chhattisgarh And Ors.

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Smt.anita Sharma v. State Of Chhattisgarh And Ors.

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