Tamin Bai Patel Vs State Of Chhattisgarh And Ors.

The short question involved in the present writ petition is as to whether the respondent No.3 is justified in terminating the services of the petitioner with immediate effect without holding a departmental enquiry holding that she was not eligible to be appointed on the post of Assistant Grade-III (for short AG-III).

¶22

The aforesaid challenge has been made on the following factual backdrop:-

¶23

(i) An advertisement (Annexure P/2) was issued by respondent No.3, inviting applications for recruitment on the post of AG-III along with other posts. The petitioner applied for the said post vide Annexure P/3 and ultimately after due selection process appointment order was issued in her favour on 02.07.2014 appointing her on probation for a period of two and pursuant thereto she joined her duties vide joining letter dated 04.07.2014.

¶24

(ii) A complaint was made against the petitioner that she was having more than two living children on or before 26^th of January, 2001, and on that account, a show cause

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notice was issued to the petitioner by respondent No.3, seeking her explanation to which she replied stating that she has only two daughters namely Ku. Shraddha Patel, aged about 9 years and Ku. Shriya Patel, aged about 7 years. Therefore, the complaint was found false and accordingly, it was closed vide Ex.R/4.

¶28

(iii) Subsequently, a second complaint was made against the petitioner regarding her to having more than two children and on account of which another show cause notice was issued to the petitioner. However, at this time, in reply to this show cause notice, the petitioner disclosed that her eldest daughter Ku. Shraddha Patel has already been given on adoption vide Annexure P/6 on 03.03.2014 i.e. the date of issuance of the advertisement also. The four member committee was Constituted by the Competent Authority to make enquiry and to submit a report in this regard. In the enquiry, it was found by the committee that the petitioner has three living children and all have born after 26.01.2001. As such, relying upon that enquiry report the petitioner’s services were terminated by stating that it is in breach of clause 6(4)(ख) of the advertisement dated 03.03.2014 which provides that a candidate applying for the post of AG-III shall not be eligible for appointment, if

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she/he has more than two living children and one of them was born on or after 26.01.2001 and in the present case the petitioner is having three children and all of them have born after 26.01.2001, questioning that impugned order dated 28.02.2015, the instant writ petition has been filed by the petitioner.

¶32

State has filed their return stating inter alia that since the petitioner was having three children on the date of appointment and all three have born after 26.01.2001. Though the adoption deed has been notarized on 03.03.2014 i.e. the date of issuance of advertisement also, but the petitioner’s appointment was clearly in violation of conditions of clause 6(4)(ख) and, as such, the petitioner’s services have rightly been terminated. No rejoinder has been filed on behalf of the petitioner controverting the allegations made in the return.

¶33

Mr. Ravikar Patel and Mr. Ramkrishan Kashyap, learned counsel for the petitioners, would submit that the competent authority is absolutely unjustified in terminating the services of the petitioner as the impugned order is stigmatic in nature and she has been held to be guilty of misconduct and, therefore, a departmental enquiry was

¶34

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necessary to terminate the services of the petitioner, which has admittedly, not been done. As such, the impugned order dated 28.02.2015 deserves to be set aside and the petitioner is entitled to be reinstated in services with all consequential benefits. To buttress their submission, they would rely upon the decision of the Supreme Court in the matter of Ratnesh Kumar Choudhary v. Indira Gandhi

¶37

1 Institute of Medical Sciences, Patna, Bihar and others .

¶38

Mr. Amit Buxy, learned State counsel, would submit that the enquiry was held as per document (Annexure R/9) confining to the eligibility of the petitioner and no enquiry has been made on suitability of the petitioner on the ground of proven misconduct, therefore, the argument raised on behalf of the petitioner is liable to be rejected. It is not the case where the petitioner, during the period of probation, was found unsuitable on the ground of her proven misconduct and even she has not been terminated holding her guilty of misconduct. As such, the petitioner was not found eligible and she has rightly been terminated from the services by respondent No.3.

¶39

1 (2015) 15 SCC 151

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I have heard learned counsel for the parties, considered their rival submissions made herein-above and also gone through the records minutely.

¶43

On 03.03.2014 an advertisement was issued by respondent No.3 for recruitment on the post of AG-III. The said advertisement provides for the conditions in respect of eligibility and one of them is the subject matter in the instant case, which states as under:-

¶44

“6 (4)( ख ). को�ईभी�उम्मी�दवा�रजि�सको�द�स�अजि�को��विवातस�त�नहै�, जि�नमी�स�एकोको��न्मी 26.01.2001 को�या�उसको�पश्चा�तहै�, विकोस� स�वा�या�पदपरविनया!वि" को�जि#एप�्ቔ नहै% है�गा�।"

¶45

Thereafter, the petitioner was selected and the appointment order was issued in her favour by order dated 02.07.2014 pursuant to which she joined on 04.07.2014. The condition No.8 of the appointment order also states that if any information is found untrue her/his services are liable to be terminated with immediate effect. For ready reference condition No.8 is being referred herein under:-

¶46

“8. उपया!" विनया!वि" अन्याआवाश्याकोको�या)वा�है�को* प+त, को* अप�ቌኋ�को*

¶47

��त�है�।याविदआपन�अभी�तको��नको�र�द�है�, वाहैअसत्याप�ई��त� है�, त�भी�आपको�तत्को�#्ቚ भी�वास�समी�्቎ को* ��सको�गा�।"

¶48

Admittedly, the petitioner filed her reply to the show cause notice issued pursuant to first complaint made against her.

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In her reply (Annexure R/3), she only disclosed that she has only two daughters Ku. Shraddha Patel and Ku. Shriya Patel, which states as under:-

¶52

" उपर�"�गात) विनवा�दन स्त!तहै�विकोमी�शा�o #�# चा्ቅ�रशा�है मीहै�विवाቕኋ�#याअ�. चा5को* मी�सहै�याकोቇኔ�ड -3 को�पदपरपदस्तहै89।मी�र� व्यावि"गातपरिरवा�रमी�मी�र�पवितቦኍ��मी=न को! मी�रपटे�# एवा�द�प!वि्ቔया��है�, प!वि्ቔया@ को�न�मी (1) को! . ቦኍቍኋ�पटे�#, 9 वा्ቧ), (2) को! . ቦኍ�या�पटे�#, 7 वा्ቧ) । ऊपरदरशा�या�अन!स�रहै�मी�र�परिरवा�रहै��जि#जिखतरूपस�विदया��रहै� है�।"

¶53

On the basis of the aforesaid reply, the complaint was closed holding that she has only two daughters and it is not in violation of the conditions of clause 6(4)(ख) of the advertisement. Thereafter, another complaint was made to the Collector which was forwarded to respondent No.3 and the respondent No.3, in turn, again sought reply from the petitioner which she submitted vide Annexure R/7 disclosing that she and her husband has already given her eldest daughter on adoption on 03.03.2014 vide Annexure P/6 by stating as under:-

¶54

" विनवा�दनहै�विकोको#�क्टेरर��न�दगा��वाको�स�दविभी)तሺኋ�पनको�स�थ्ቚ �्቎ सहैप्ቔ�मी� वा�स्तविवाकोतथ्या@ को�समी�वा�शानहै�विकोया�गाया�है�।बቇኌKकोमी!झे�मी�नजिसकोरूपस�पर�शा�न कोरन�को�उቌኔ�श्यास�को! छ#�गा�ቛኋ�र�विशाको�यातविकोया�गाया�है�उ" विशाको�यातको�को�ई आ��रनहै�है�।त�नस�त�नको�स�ब मी��्ቚ प्ቔ ቦኍ�मी�न��को�समीቌኋउप#ब्�कोर�ए गाएहै�वाहैप+र�तरहैस�स्प्ቖ नहै�है�वास्त!तR वा�स्तविवाकोत�याहैहै�विकोमी�एवा�मी�र�पवितቛኋ�र� मी�र�ब़ቡ�प!्ቔ�को! . ቦኍ�ቍኋ�पटे�# को�#गाभीगा 8 वा्ቧ) प+वा) है�मी�र�ब!आस�सन�स�मी�जि�को रिरवितरिरवा��एवा�विवाजि�वातप!�नप�ठकोरवा�कोरमी�र�ब!आत!#स�ब�ईआ o ब!ቍኋ!र�मी पटे�# विनवा�स�वा�ड)्ቅ या 11 मीविटेया�ड�गारगा��वाजि�#�र��न�दगा��वाद्ቈकोप!्ቔ�को�रूपमी� ቇኔहैणविकोया�है�।समीस्तएवा�मी�र�परिरवा�रको�कोहैन�स�मी�र�औरमी�र�पवितቛኋ�र�विदन��को 3

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मी�चा) 2014 को�मी�एवा�मी�र�पवितन�द्ቈकोविवा#�खबन�या�है�जि�स�मी�नन�यान�टेर�ቛኋ�र� सत्या�विपतविकोया�है��प+र�तरहैविवाजि�वातहै�।"

¶58

Pursuant to aforesaid reply a four-member committee was constituted to find out whether on the date of appointment the petitioner was having more than two children and one of them was born after 26.01.2001, in terms of clause 6(4) (ख) of the advertisement. In the enquiry report dated 28.02.2015 (Annexure R/9), it has been found that petitioner already has three daughters and all of them have born after 26.01.2001, therefore, she was ineligible to be appointed on the post of AG-III in terms of condition of clause 6(4)(ख) of the advertisement. The said enquiry report states as under:-

¶59

विदन��को 28/02/2015

¶60

को�या�)#या�न आद�शा्ቅ मी��को 1278/स्थ�./2015 विदन��को 28/02/2015 को�तहैतY ቦኍ�मीत�टे�विमीनब�ईपटे�# सहै�याकोቇኔ�डत�नको* विनया!वि" को�स�ब मी�्ቚ �्቎ विशाको�यातप्ቔ@ को�तथ्या@ को��Xचाहै�त! गाविठतसविमीवित को* ब�ठकोआ�विदन��को 28/02/2015 को�अपर�न्है 3.30 ब��स्टे�फ रूमीमी�आया�जि�तको* गाई। (1) �Xचाको* विबन्द! :- विदन��को 20/08/2014 को�आवा�दकोगाणसमीस्त :- ቇኔ�मीवा�स�गाणन�विदया�अहैस्त�ቌኋरिरतएवा�विबन�न�मीको�्ቚ �्቎ आर�पप्ቔ स्प्ቖ�कोरण :- इसप्ቔ को्ቚ �्቎ है�न�परको�या�)#या�नप्ቔ्ቅ मी��को 555/स्थ�./2015 विदन��को 20/08/2014 को� तहैतY ቦኍ�मीत�टे�विमीन ब�ईपटे�# स�व्यावि"गातपरिरवा�रको ��नको�र�मी��गा�गाई।इसको��वा�बमी� विदन��को 21/08/2014 को�ቦኍ�मीत�पटे�# ቛኋ�र�्ቚ स्त!त�वा�बप्ቔ मी�द� प!्ቔ�को* ��नको�र�द�गाई (2) �Xचाको* विबन्द! :- आवा�दकोቦኍ�मी!को�शाया�दवाविचाख#�र��न��दगा��वा (जि#फ�फ�मी�अ�विकोतन�मी) को�आवा�दनको�आ��रपरको�या�)#याको#�क्टेर र��न��दगा��वाको�ሺኋ�पनकोमी��को 210/16/1/2015 एवा�स�#्ሿ दस्त�वा �

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गा�ईडएण्डगाजि�)यानस�स्को�रविवाቕኋ�प�ठको! मीद�) विवाको�सखण्डछ! रिरया�, जि�#� र��न��दगा��वाको�द�जिख# ख�रिर�प � �को* छ�या�्ቚवित (स्ቔ 2009-10 एवा� 2013-14) :-

¶64

स्प्ቖ�कोरण :- इसप्ቔ को�आ��रपरቦኍ�मीत�पटे�# स�प!नR प्ቔ्ቅ मी��को 1138 विदन��को 19/01/2015 को�तहैतY स�त�नको�स�ब मी�स्प्ቖ�कोरण स्त!त कोरन� है�त! विनद=विशात विकोया� गाया� जि�सको� �वा�ब मी� विदन��को 20/01/2015 को�ቦኍ�मीत�पटे�# ቛኋ�र�्ቚ स्त!तस्प्ቖ�कोरणएवा�आवा�दनቦኍ� मी!को�शाया�दवाቛኋ�र�्ቚ स्त!तदस्त�वा स�्ቚ मी�विणतहै�त�है�विको 1. ቦኍ�मीत�पटे�# ቛኋ�र�्ቚ स्त!त�वा�ब�प्ቔ मी�याहै्ቚ मी�विणतहै�त�है�विकोउनको* त�न��विवातस�त�नहै�्ቚ मी�णस्वारूपन�टेर�ቛኋ�र�्ቚ मी�विणतशापथप्ቔ जि�समी� ज्या�्቗ प!्ቔ�को�अपन�रिरश्त�द�रको�गा�दन�मी�विदया��न�को�उቤኔ�खहै�। 2. आवा�दकोቦኍ�मी!को�शाया�दवाቛኋ�र�्ቚ स्त!तद�जिख# ख�रिर�प � � 2009-10 एवा� 2013-14 को* छ�या�्ቚवितजि�समी�स्ቔ 2009-10 मी� (को) अन!्ቅमी�को 236 को! . ቦኍቛኋ�पटे�#, विपत�ቦኍ��मी=न को! मी�रपटे�#, मी�त� ቦኍ�मीत�टे�विमीनपटे�# ��वितमीर�र, ቇኔ�मीन�विदया� (ख) अन!्ቅमी��को 247 को! . ቦኍaविቛኋपटे�# विपत�ቦኍ��मी=न को! मी�रपटे�#, मी�त� ቦኍ�मीत�टे�विमीनपटे�# ��वितमीर�र, ቇኔ�मीन�विदया� 2013-14 (गा) स्ቔ मी�अन!्ቅमी��को 304 को! . ቦኍ�या�पटे�#, विपत�ቦኍ��मी=न ् को! मी�रपटे�#, मी�त�ቦኍ�मीत�टे�विमीनपटे�# ��वितमीर�रया�न�मीद�) है�। उपर�" उप#ब्�द�न@ शा�#�प � �स�्ቚ मी�विणतहै�त�है�विकोቦኍ�मीत� पटे�# को* त�न��विवातस�त�नहै�।

¶65

मीहै�विवाቕኋ�#यामी�सहै�याकोቇኔ�डत�नको�पदपरभीत, स�स�ब�जि�त समीस्तअविभी#�ख@ को�अध्यायानएवापर�ቌኋणस�ሺኋ�तहैcआविकोइसपदपरभीत, है�त! विन��)रिरतआवा�दनप्ቔ को�्ቚ �रूपको* को�विडको� 1 स� 20 तको (जि�समी�न�मी, विपत�, मी�त�को�न�मी, �न्मीवितजिथ, वागा), पत�, जि#�गा, शा�ቌኋविणकोया�ग्यात�आविद) को� स्प्ቖ उቤኔ�खत�है�#�विकोनस�त�नस�स�ब�जि�त��नको�र�को�को�ईविबन्द! उቤኔ�ख नहै% है�, #�विकोनविवाሺኋ�पनको* को�विडको� 6 अन्याशात= 4 (ख) मी�स्प्ቖ उቤኔ�खहै�विको (को�ईभी�उम्मी�दवा�रजि�सको�द�स�अजि�को��विवातस�त�नहै�,

¶66

जि�नमी�स�एकोको��न्मी 26/01/2001 को�या�उसको�पश्चा�तहै� विकोस�स�वा�या�पदपरविनया!वि" को�जि#या�प�्ቔ नहै% है�गा�) को�पढ़समीझेकोर आवा�दनप्ቔ को* अ�तमी�उቤኔ�जिखतघो�्ቧणप्ቔ परउम्मी�दवा�रन�हैस्त�ቌኋरविकोया� है�।इस�आ��रपर�Xचासविमीवितቛኋ�र�आवा�दनप्ቔ को�प�्ቔ मी�न�गाया�है�। विनया!वि" उपर��त्ቚ �्቎ विशाको�यात / आर�पप्ቔ को�स�थस�#्ሿ दस्त�वा � एवा�ቦኍ�मीत�टे�विमीनब�ईपटे�# ቛኋ�र�्ቚ स्त!तस्प्ቖ�कोरणएवा�शापथप्ቔ स�याहै मी�विणतहै�त�है�विकोउनको* त�न��विवातस�त�नहै�।

¶67

तद्न!स�र�Xचारिरप�टे) स�दर्ቚ स्त!तहै�। टे�प :- ��9चासविमीवितको�्ቚ कोरणस�स�ब�जि�तसमीस्तदस्त�वा उप#ब्�कोर�या� गाया�थ�।जि�स� ��9चाउपर�न्तसमीस्तदस्त�वा को�या�)#यामी��मी�विकोया�गाया�।"

¶68

The report of the committee was accepted by respondent No.3 and the petitioner services have been terminated

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finding that she is ineligible to be appointed on the post of AG-III, which has been called in question by way of this writ petition.

¶72

The petitioner herein sought to rely upon the decision of the Supreme Court in the matter of Ratnesh Kumar Choudhary (supra) in which the petitioner therein was a probationer and while considering his suitability for confirmation on the post, an ex-parte enquiry was held finding guilty him of having committed misconduct, thereafter, he was subjected to termination by holding an ex-parte enquiry, which the Hon’ble Supreme Court did not find favour and interfered with in the order of termination and set aside the order of termination directing the petitioner therein to be reinstated in service and held in paragraph 27 as under:-

¶73

“ 27 … The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter-affidavit. Thus, by no

¶74

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stretch of imagination can it be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench.

¶77

2 14. In the matter of State of Rajasthan v. Kulwant Kaur , their Lordship of the Supreme Court has held that possession of essential qualification is mandatory for obtaining the legal right to continue in the post and observed in paragraph Nos.12, 13 & 14 as under:-

¶78

“12 . The services of the respondent had been terminated on the ground that she lacked essential educational qualification. The High Court passed an interim order in her favour. Such orders were being passed on the ground that the State had been making discrimination amongst the teachers in the matter of sending them for obtaining training; such in-service training being permissible. However, we are not concerned with such a situation in this case.

¶79

13. The respondent herein did not possess the requisite qualification. Only because the order of termination of service of respondent was directed to be stayed and in obedience of the interim orders passed by the High Court, she was allowed to continue in services, the same, in our opinion, cannot lead to the conclusion that she had been validly holding the post or the order of termination was bad in law. After Shyam Lal Joshi [(1994) 1 SCC 593 : 1994 SCC (L&S) 610 : (1994) 26 ATC 633] it is

¶80

2 (2006) 9 SCC 564

¶81

12

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not disputed that the teachers were required to possess a Short Training Certificate. As the respondent did not possess such essential qualification, she has no legal right to continue in service. The orders of termination passed, both in 1987 and 1994, which were the subject-matter of Writ Petition No. 1383 of 1987 (being against the order dated 11-5-1987) and Writ Petition No. 2973 of 1994 (being against the order dated 31-5-1994), cannot, thus, be held to be bad in law.

¶84

14. In Mohd. Sartaj v. State of U.P. [(2006) 2 SCC 315 : 2006 SCC (L&S) 295 : (2006) 1 Scale 265] this Court clearly held that possession of an essential educational qualification was mandatory for obtaining the right to continue in the post. A legal right in this behalf cannot be said to be derived by an employee only because an interim order was passed by the High Court.”

¶85

Reverting to the facts of the present case, in light of the

¶86

principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that in this case the respondent No.3 had constituted an Enquiry Committee to make an enquiry with regard to the eligibility of the petitioner to hold/continue the post on which she was appointed i.e. AG-III, on the complaint that she is having more than two living children and one of them has born after 26.01.2001, which was found true as she is having three children and all them have born after 26.01.2001. As such, an ex-part e enquiry was confined as to the eligibility of the petitioner to hold the post of AG-III and as per the record, the ex-parte enquiry

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13

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WPS No. 1061 of 2015

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was not conducted to find the suitability of the petitioner as a probationer on the post of AG-III and it is also not a case where in the ex-parte enquiry, she has been found to be guilty of having misconduct and she was terminated from the said post.

¶90

In that view of the matter, the judgment of the Supreme Court in Ratnesh Kumar Choudhary (supra) which has been relied on by the counsel for the petitioner, is clearly distinguishable on its own facts compare to the fact of the present case as in that case there was no enquiry conducted to find out whether the petitioner therein possessed the requisite qualification.

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For the foregoing reasons, the petitioner did not fulfill eligibility criteria for the post of AG-III as per clause 6(4)(ख) of the advertisement as at the time of appointment, she was having more than three children and all have born after 26.01.2001 and also the fact of adoption of her elder daughter has not been established in accordance with law. Therefore, respondent No.3 has rightly terminated the services of the petitioner by accepting the enquiry report dated 28.02.2015 (Annexure R/3) which, in my considered opinion, is correct finding of fact based on material

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WPS No. 1061 of 2015

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available on the record and which is neither perverse nor contrary to the records. Accordingly, the instant writ petition deserves to be and is hereby dismissed, leaving the parties to bear their own cost(s).

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Sd/(Sanjay K. Agrawal) Judge

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Ankit

Tamin Bai Patel v. State Of Chhattisgarh And Ors.

Case brief

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Tamin Bai Patel v. State Of Chhattisgarh And Ors.

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