K.s.shrey Vs State Of Chhattisgarh

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2025:CGHC:10230

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 1238 of 2017

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1 - Kauselendra Singh S/o Late L. H. Singh, Aged About 58 Years R/o D-2/24 OfÏcers Colony, Devendra Nagar, Raipur District Raipur Chhattisgarh 2 - M. N. Parasad Rao, S/o Late Shri M. J. Rao, Aged About 63 Years R/o Aprakunj, State Bank Colony, Timber Market, Fafadih, Raipur, District Raipur, Chhattisgarh

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--- Petitioner(s)

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versus

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1 - State of Chhattisgarh Through Secretary, Department Of Home, Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh

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2 - Economic Offence Wing EOW In Front Of Jail Jawan Petrol Pump, G. E. Road, Raipur Chhattisgarh

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3 - V. K. Das, S/o Shri R. B. Das, Aged About 41 Years R/o J-78, Sector-2, Shankar Nagar, Raipur Chhattisgarh PIN 492007

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--- Respondent(s)

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For Petitioner(s) : Mr. Saurabh Dangi, Advocate. For Respondent No. 1 & 2 / : Mr. Sangharsh Pandey, Government State Advocate. For Respondent No. 3 : Mr. Amiya Kant Tiwari, Advocate.

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WPCR No. 347 of 2017

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K.S.Shrey S/o Late K.L.Shrey, Aged About 58 Years Posted As Manager, Chhattisgarh State Civil Supplies Corporation Limited, Raipur, R/o M.I.G. 33, Sector-3, Pt. Deendayal Upadhyay Nagar, Raipur, District Raipur, Chhattisgarh

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--- Petitioner(s)

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Versus

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1 - State Of Chhattisgarh Through Secretary, Department Of Home, Mahanadi Bhawan, Naya Raipur, Raipur, Chhattisgarh

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2

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2 - Economic Offence Wing EOW In Front Of Jai Jawan Petrol Pump, G.E.Road, Raipur, Chhattisgarh

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3 - V.K.Das S/o Shri R.B.Das, Aged About 41 Years R/o J-78, Sector-2, Shankar Nagar, Raipur, Chhattisgarh, Pin 492007

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--- Respondent(s)

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For Petitioner(s) : Mr. Saurabh Dangi, Advocate. For Respondent No. 1 & : Mr. Sangharsh Pandey, Government 2 / State Advocate. For Respondent No. 3 : Mr. Amiya Kant Tiwari, Advocate.

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Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge

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Order on Board

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Per Ramesh Sinha, Chief Justice

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03/03/2025

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1. Heard Mr. Saurabh Dangi, learned counsel for the petitioners, Mr. Sangharsh Pandey, learned Government Advocate for the State/respondents No. 1 and 2 as well as Mr. Amiyakant Tiwari, learned counsel for the respondent No. 3.

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2. Since both the petitions i.e . Cr.M.P. No. 1238/2017 and WP(Cr). No. 347/2017 arise out of same offence, and the relief sought in both the petitions being identical, they are being considered and decided together by this common order.

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3. In Cr.M.P. No. 1238/2017, the petitioners have prayed for the following relief(s):

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“It is therefore prayed that this Hon’ble Court may kindly be pleased to set aside and quash the FIR registered by respondent bearing Crime No. 24/17 and the order passed by the Special Judge dated 22.07.2017 in to secure the ends of justice.”

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4. In WP(Cr) No. 347/2017, the petitioner has prayed for the following relief(s):

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“10.1 That this Hon’ble Court may kindly be pleased to set aside and quash the FIR registered by respondent bearing Crime No. 24/17 and the order passed by the Special Judge dated 22.07.2017 in order to secure the ends of justice.

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10.2 Any other relief which this Hon’ble Court deems fit in the facts and circumstances may also be granted in favour of the petitioner. ”

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5. The facts, in brief, as projected by the petitioners, in both the aforesaid petitions are that petitioner-Kauselendra Singh was posted as Managing Director, petitioner-M.N.Parasad Rao was posted as General Manager, and petitioner-K.S.Shrey was posted as Manager (Administration) in the Chhattisgarh State Civil Supplies Corporation Ltd. ( for short, the Corporation ) at the relevant time. In the year 2012, an advertisement was floated by the Corporation with the approval of the Board, on 30.07.2012 inviting applications for recruitment on 15 posts of Assistant Manager in the Corporation and after the due selection process, 15 persons were selected and were appointed in November, 2012. A complaint was made by the complainant / respondent No. 3, who claims himself to be a social activist alleging that the appointments were illegal as they were made without the sanction or prior approval of the Government. On 31.10.2013, the State Government directed for an enquiry to be conducted by the Joint Director, Food and Civil Supplies, who conducted the enquiry and submitted its report on 21.01.2014. Pursuant to the said enquiry report, the State Government issued a communication to the Corporation on 28.02.2014 directing the Corporation to take steps for cancellation of the appointment instead of directing preparation of fresh list as recommended by the enquiry ofÏcer.

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The Corporation, thereafter, convened a meeting of the Board of Directors wherein a decision was taken to cancel the appointments in view of directions received from the State Government.

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6. The aforesaid order was challenged before the learned Single Judge of this Court in WP(S) No. 5549/2014 and other connected matters wherein, vide judgment dated 16.08.2016, the petitions, where the termination was challenged and the petitions where the services of the petitioners therein was dispensed with during the period of probation was dismissed and the other petitions, where the petitions were filed seeking direction that the posts be filled by promotion and not direct recruitment, were disposed with an observation that the Corporation shall first consider as to whether suitable persons were available in the feeder cadre and those who would be found suitable may be dealt with in accordance with law and remaining posts could be filled up by way of direct recruitment depending upon the exigencies of the administration.

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7. Aggrieved by the judgment of the learned Single Judge, Writ Appeals were filed by the petitioners therein being WA No. 433/2016 and other connected matters. A Division Bench of this High Court, vide judgment dated 09.11.2016 observed that there was no doubt that the post of Assistant Manager which was to be filled up in the year 2012 was a promotional post and was to be filled up by the way of promotion, it was also observed that the Rule 7(ii) (b) of the Chhattisgarh State Civil Supplies Corporation Limited Rules provided that if suitable persons were not available for promotion, the remaining posts against promotion quota could be filled in by direct recruitment or deputation of reappointment. Keeping in view the fact that no eligible candidates were available in the feeder cadre of the Corporation, the posts could not have

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been filled as promotional posts and the same were then filled in accordance with the Rule 7(i) (b) of the CSCSCL Rules. It was further observed that there was no requirement of prior approval and the ex post facto sanction could serve the purpose and that ex post facto sanction was accorded before appointments were made and even before the interview was held. With regard to the allegation that the reservation rules were flouted, the learned Division Bench, while relying on the decision of Hon'ble Apex Court in the matter of Rajesh Kumar Daria vs Rajasthan Public Service Commission and Others reported in (2007) 8 SCC 785 observed that the 40% of the selected candidates were women and therefore horizontal reservation was not required to be applied at all. The aforesaid judgment dated 09.11.2016 of the learned Division Bench was then challenged by the State/respondents before the Apex Court in SLP(C) 36115/2016, State of Chhattisgarh v. Santosh Agrawal , wherein, vide order dated 16.12.2016, the order of the Division Bench of this High Court was upheld.

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8. Mr. Dangi, learned counsel for the petitioners submit that after everything was set at naught, on 14.06.2017 an application under Section 156(3) of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.) was filed by the respondent No. 3 before the Special Judge, Prevention of Corruption Act, Raipur, stating that cognizance be taken against petitioners herein who have committed cognizable offences. A pick and choose method has been adopted by the complainant in making the complaint in issue and the approving ofÏcers including the then Secretary have conveniently been left out. It was alleged by the respondent No. 3 that the petitioners had caused irregularity in the process of appointment of Assistant Managers by giving direct

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appointment on the post meant to be filled by promotion and thereby committed economic offence and due to the illegal appointments made by the petitioners herein, the State had to pay Rs. 1,12,00,000/- to the illegally recruited Assistant Managers. The complainant has further alleged that the Corporation had terminated the appointments of the recruited Assistant Managers and had also recommended action against the ofÏcers responsible, However, no such action was taken by the State. The respondent No. 3/complainant had further stated that he had filed complaints with various authorities and requested them to lodge an FIR against the persons responsible for causing loss of such a huge amount of the State. But the complainant no where states that the petitioners were benefited in any manner or they had derived any wrongful gain by committing the act in issue. On the basis of these allegations made by the respondent No. 3/complainant against the petitioners, the learned Special Judge, Raipur, vide order dated 22.07.2017 ordered the Anti corruption Bureau to register an FIR against them. Pursuant to the said order of the learned Special Judge, an FIR has been registered against the petitioners on 04.09.2017 for the offences punishable under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 ( for short, the PC Act ) by the Anti Corruption Bureau, Raipur vide FIR No. 24/2017 which is sought to be quashed in these petitions.

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9. It is further submitted by Mr. Dangi that even if the allegations made in the complaint are taken at their face value and accepted in their entirety, it does not constitute any offence as against the petitioners. The bare perusal of the prosecution story, at any point, does not even slightly indicate that any offence has been committed by the petitioners. Placing reliance on the judgment of the Apex Court in Hira Lal v. State of U.P .,

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reported in (2009) 11 SCC 89, Mr. Dangi submits that one of the grounds on which such interference is permissible is that the allegations contained in the complaint petition even if given face value and taken to be correct in their entirety, commission of an offence is not disclosed. The present is a vague complaint made by the complainant against the petitioners to harass them. Further reliance is placed on the decision of the Supreme Court in Neelu Chopra v. Bharti reported in (2009) 10 SCC 184 wherein it has been observed that in order to lodge a proper complaint, mere mention of the Sections and the language of those Sections is not the be all and end all of the matter. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in commission of that offence, which is totally missing in this case.

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10. It is next submitted by Mr. Dangi that the respondent No. 3/complainant has misled the learned Special Judge by suppressing the factum of the orders passed in Writ Appeals filed in this Hon'ble Court wherein the validity of the recruitment process was upheld. The complainant has further suppressed the fact the the order of the learned Division Bench in Writ Appeal No. 433/2016 and connected matters, wherein the selection process was upheld, has been further upheld by the Hon'ble Apex Court in SLP(C) No. 36115/2016. The recruitment process was approved by the Board of the Corporation and the petitioners herein had no role in approving the advertisement or the seats that were to be filled by the selection process and the learned Special Judge, without examining the issue with regard to the specific role of each of the petitioners, had proceeded against the petitioners. The ingredients of Section 13(1)(d) of the Prevention of Corruption Act are missing and no such offence is

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made out. In the present case, the complaint nowhere alleges or specifically asserts that any pecuniary advantage has been obtained by the petitioners herein. It merely states that because of the fault of the petitioners, which in fact cannot be even attributed to the petitioners as the selection was approved by the Board, loss was caused to the public exchequer. The petitioners have at no place been shown to have wrongfully gained any pecuniary advantage. Further reliance is placed by Mr. Dangi on the decision of the Apex Court in in State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC 335, N.V. Subba Rao v. State , reported in (2013) 2 SCC 162 and the decision of the Himachal Pradesh High Court in Vidya Stokes v. State of Himachal Pradesh , reported in 1994 Cri LJ 1833, decision of the Patna High Court in the case of Ran Vijay Kumar v. State of Bihar , reported in 2006 SCC OnLine Pat 270.

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11. On the other hand, Mr. Sangharsh Pandey, learned counsel for the State/respondents No. 1 and 2 submits that after filing of the complaint by the respondent No. 3 before the Magistrate, on the direction issued by the learned Magistrate, the FIR has been registered and because of the interim order passed by this Court, the investigation of the case has been stalled. The investigation was at the very initial stage and as such, it would not be proper to make any comments on the merits of the case.

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12. Mr. Amiya Kant Tiwari, learned counsel for the complainant / respondent No. 3 submits that the petitioners were directly involved in issuing the advertisement for appointment on the post of Assistant Manager. On the basis of complaint made by the complainant, the selection of the candidates on the post of Assistant Manager was cancelled by the State Government which itself is an evidence that there was some illegality

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and irregularity in the entire recruitment process. The State had to pay a huge sum of money towards the salary to the selected candidates which has caused loss to the public exchequer. The petitioners had prepared false gradation list of Senior Assistant / Assistant Manager / Deputy Manager and submitted to the Government. The illegality and the irregularities committed by the petitioners have been inquired into by the respondent authorities and one of the petitioners namely K.S.Shrey has been compulsorily retired w.e.f 30.09.2016. Mr. Tiwari places reliance on Section 41 of the Indian Evidence Act, 1972 and also on the decision of the Apex Court in Priyanka Jaiswal v. State of Jharkhand & Others , reported in 2024 LawSuit (SC) 380, to state that at the time of examining the prayer for quashing of the criminal proceedings, the Court exercising extra ordinary jurisdiction can neither undertake to conduct a mini trial nor enter into appreciation of evidence of a particular case. The correctness or otherwise of the allegation made in the complaint cannot be examined on the touchstone of the probable defence that the accused may raise to stave off the prosecution.

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13. It is an admitted position that all the petitioners have retired from their respective posts. The petitioner-K.S.Shrey was granted anticipatory bail by a learned Single Judge of this High Court in M.Cr.C(A) No. 1012/2017 vide order dated 04.01.2018 and a learned Single Judge of this Court, vide order dated 14.09.2017, while issuing notices to the respondents, had ordered that no coercive steps shall be taken against the petitioner. Thereafter, vide order dated 13.09.2019, the learned Single Judge, while allowing an application (IA No. 1) filed by the petitioner-K.S.Shrey, had ordered that till disposal of this case, proceedings in Crime No. 24/2017 registered against the petitioner under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act,

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registered at Police Station, State Economic Offences & Investigation and Anti Corruption Bureau, Raipur, shall remain stayed. So far as the petitioners-Kauselendra Singh and M.N.Parasad Rao are concerned, in their case also, a learned Single Judge, vide order dated 13.09.2017 had granted interim protection to the effect that no coercive steps shall be taken against them and thereafter, vide order dated 13.09.2019 again granted interim protection as was granted in case of petitionerK.S.Shrey.

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14. The aforesaid order dated 13.09.2019 passed by the learned Single Judge in WP(Cr) No. 347/2017 was sought to be challenged by the respondent-State by filing Special Leave Petition (Criminal) No. 1551/2020 before the Apex Court in which the Apex Court, vide order dated 03.01.2025, had directed that without having sufÏcient material before it, the Court should not have prejudged the issue and granted a stay to the proceedings and such interim order ought not have been passed and hence, the interim order dated 13.09.2019 was set aside and the matter was remanded to this Court with a request to decide the case(s) on its own merit. As such, both these petitions are being considered and decided finally on merits.

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15. Basically, the prayer in both these petitions are to quash the FIR registered against the petitioners pursuant to the order passed by the learned Special Judge, PC Act, Raipur, on the complaint filed by the respondent No. 3. The petitioners also seek quashing of the order dated 22.07.2017 by which the EOW / ACB was directed to register the aforesaid FIR.

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16. Section 13(1)(d) and Section 13(2) of the PC Act reads as under:

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13. Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct -

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(d) if he, -

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(I) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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(iii) while holding ofÏce as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

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(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than four years but which may extend to ten years and shall also be liable to fine. ”

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17. The allegation made against the petitioners was that they had issued advertisement contrary to the rules prevalent in the Corporation for direct appointment on the post of Assistant Manager, which was a promotional post. As per the allegation of the respondent No. 3, direct appointments were made on the promotional post which had caused huge loss to the public exchequer in terms of salary paid to the ineligible candidates who were selected. However, fact of the matter remains that there is no direct allegation against the petitioners that they have been benefited financially or they have taken illegal gratification for providing the said appointment.

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18. On the complaint made by the respondent No. 3, enquiry was conducted and thereafter, the State Government directed to cancel the appointments made which was the subject matter of challenge before a learned Single Judge of this Court in WPS No. 5549/2014 and other connected matters, wherein, not only the candidates whose appointments were cancelled had filed petitions, but also those belonging to the feeder cadre eligible for appointment through promotion, were also the petitioners and as such, their version was also heard by the learned Single Judge. After hearing the parties, the learned Single Judge, vide order dated 16.08.2016, the petitions where the services of the petitioners therein was dispensed with during the period of probation was dismissed and the other petitions, where the petitions were filed seeking direction that the post be filled by promotion and not direct recruitment, were disposed of with the observation that the Corporation shall first consider as to whether suitable persons were available in the feeder cadre and those who are found suitable in the feeder cadre and those who are found suitable, may be dealt with in accordance with law and the remaining posts could be filled up by way of direct recruitment depending upon the exigencies of the administration. The said order passed by the learned Single Judge was further challenged before a Division Bench of this Court in WA No. 433/2016 and other connected matters. The learned Division Bench, vide judgment dated 09.11.2016, observed as under:

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“ 10. It is not disputed before us that the post of Assistant Manager in the year 2012 was a promotional post which was to be filled up by way of promotion. Rule 7(ii)(b)of the Chhattisgarh State Civil Supplies Corporation Limited Rules (hereinafter called as ‘the Rules’) provides as follows:-

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“7. Method of Recruitment:-

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(b) Vacancies shall be filled in by rotation according to the number of posts fixed for direct recruits of persons to be taken on deputation or re-appointment and promotees of deputations or re-appointment and the other three vacancies shall be filled in by promotees and soon;

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Provided that if suitable persons are not available for promotion, the remaining posts against promotion quote, shall be filled in by direct recruitment or deputation or reappointment.”

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14. The Learned Single Judge rightly held that since the Rules do not require prior approval, ex post facto of sanction may serve the purpose. We may also take note that the ex post facto sanction was accorded before appointments were made and even before the interviews were held. The Learned Single Judge relied upon the judgment of the Apex Court in Union of India Vs. Vinod Kumar and Others, (1996) 10 SCC 78 in this regard.

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15. However, the Learned Single Judge relying upon the judgment of the Apex Court in Meera Sahni Vs. Lieutenant Governor of Delhi and others, (2008) 9 SCC 177, held that it is a settled proposition of the law that when an action to be taken in a particular manner as provided by a statue that action must be taken, done or performed in the manner prescribed and in no other manner at all. According to the Learned Single Judge since the appointing authority has not assessed the suitability of the persons working in the Corporation, therefore, the decision had not been taken in the manner prescribed by the rules. With due respect to the

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Learned Single Judge, we are not at all in agreement with this view. The reason is that attention of the Learned Single Judge was not drawn to the fact that there were in fact no eligible candidates, in the feeder category available with the Corporation.

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16. The question of assessing the suitability of the candidates would only arise if there are eligible candidates in the feeder category. When there were no eligible candidates, then there can be no assessment of their suitability. One cannot assesses suitability of non-existing candidates. Since there were admittedly no departmental candidate eligible for promotion at the time when the advertisement was issued, the question of assessment of their being suitable or not does not arise.

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19. Even with regard to the rules of reservation, we have a grave doubt whether the entire selection process could be set aside. On this count, it would be pertinent to mention that the advertisement was issued by the Corporation and ex post facto approval was taken from the Board including the Secretary, Food and Civil Supplies, Govt. of Chhattisgarh for issuing the advertisement. This means that the Secretary, Food and Civil Supplies, Govt. of Chhattisgarh must have seen the advertisement before giving his approval. He was thus aware that no provision has been made in the advertisement for horizontal reservation for women in the reserved category. No doubt, this is in violation of the Chhattisgarh Civil Services (Special Provision for Appointment of Women) Rules, 1997 which clearly provided for 33% reservation for women across the border. The issue that arises is whether if the employer makes a mistake in issuing the advertisement, can the employer himself set aside the selection process when no person has come to the Court for challenging the selection process.

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20. No complaint was made to the employer with regard to violation of the reservation rules. The complaint was that posts have been filled up without prior approval/sanction and without following the rules. That complaint was inquired and the inquiry ofÏcer only gave a report that there were some irregularities which could be rectified by re-drawing the combined merit list. This in our opinion, does not entitle the employer-Corporation or the Secretary, Food and Civil Supplies, Govt. of Chhattisgarh to set aside the entire selection process. We may also in this regard mention that out of 15 posts for which the selection were made, 6 posts have been filled up by the women, therefore, the representation of the women is 40% i.e. more than 33%.

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23. The services of the petitioners who had worked for more than two years could not be terminated when they were not at fault. They had not committed any offence. Further, as pointed out by us, there is no merit in the contention that the posts could not be filled in by direct recruitment. As far as reservation for women is concerned, 40% of the selected candidates are women. Services of four of the selected candidates have been terminated. If the Corporation feels that the women were not given due representation, they may make adequate reservation for women in the fresh recruitment to be conducted so as to fill up shortfall of women candidates, if any.

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24. In this view of the matter, we are clearly of the view that services of group ‘A’ employees i.e. the Appellants in Writ Appeal Nos.435 of 2016, 436 of 2016, 437 of 2016, 438 of 2016, 439 of 2016, 440 of 2016, 441 of 2016, 477 of 2016, 478 of 2016 and 482 of 2016 were wrongly terminated. Consequently, the Writ Appeal Nos.435 of 2016, 436 of 2016, 437 of 2016, 438 of 2016, 439 of 2016, 440 of 2016, 441 of 2016, 477 of 2016, 478 of 2016 and 482 of 2016 are allowed. The said Appellants are directed to be reinstated in service.

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They shall also be entitled to 50% back wages, however, the entire period during which they were out of service shall be counted for the purpose of seniority, pension, fixation of pay, etc.

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19. The judgment passed by the learned Division Bench has further been challenged by the State/respondents in Special Leave to Appeal (C) No. 36115/2016 which also stood dismissed, however, the 50% of back wages as granted by the learned Division Bench was reduced to 25%. As such, the order of the learned Division Bench of this Court has attained finality and the appointment of the candidates who were selected pursuant to the advertisement issued by the petitioners herein, has been held to be valid.

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20. Once the appointment of the candidates, who were directly appointed pursuant to the advertisement issued by the petitioners herein is held to be valid, and further having regard to the fact that even in the FIR lodged by the respondent No. 3/complainant, there is no allegation against the petitioners that they have obtained any illegal gratification or have been benefited in any manner, and further having regard to the fact that the complainant had not brought the facts as above to the notice of the learned Special Judge with regard to passing of the order by the learned Division Bench and thereafter by the Apex Court by which the appointments have been held to be valid, the learned Special Judge has been kept in dark and an order has been obtained for registration of FIR against the petitioners herein, we are of the considered view that this Court should exercise its powers under Article 226 of the Constitution / Section 482 of the Cr.P.C. and quash the order dated 22.07.2017 passed by the learned Special Judge, Prevention of Corruption Act,

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Raipur, in Complaint Case No. Unregistered as well as the FIR bearing Crime No.24/2017 registered at Police Station State Economic Offence Investigation and Anti Corruption Bureau, Raipur, dated 04.09.2017 for the offences under Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

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21. Resultantly, both the aforesaid petitions stand allowed .

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Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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Amit

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AMIT
KUMAR
DUBEY
Digitally signed by
AMIT KUMAR DUBEY
Date: 2025.03.04
19:16:04 +0530

K.s.shrey v. State Of Chhattisgarh

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K.s.shrey v. State Of Chhattisgarh

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