Toran Lal Verma Vs State of Chhattisgarh

3. Brief facts of the case are that, the petitioner was appointed as Assistant Grade-III and eventually, he got promoted to the next higher post of Assistant Grade-II (Computer) vide order dated 18/08/2022, whereby the petitioner was posted at the Civil Hospital, Deobhog Gariyaband. The petitioner joined the aforesaid place of posting on 23/08/2022 and thereafter, preferred a representation clearly mentioning his place of posting at promoted post i.e. (Computer) Assistant Grade-II, Civil Hospital Devbhog. The District Maleria Officer also made recommendation in favour of the petitioner, which was duly considered and decided by the respondent No.2 and the order of posting of the petitioner was amended vide order 01/09/2022 and he was now posted at

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the Office of District Malaria Officer, Raipur. All of sudden the order of posting has been cancelled by the respondent No. 2 vide order dated 23/12/2022 on the alleged ground that the petitioner has not disclosed the fact that he has already joined on the promoted post, which is ex-facie incorrect. The petitioner has made representation clearly mentioned his posting at promoted post and the proposal was also sent by the District Malaria Officer, thus the petitioner has not suppressed anything. Subsequently, respondent No. 2 also issued a predetermined show cause notice on the same fact that why his promotion be not cancelled as he has made representation on false/untrue facts.

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4. Learned counsel for the petitioner submits that the impugned order and the impugned show cause notice have been passed in a wholly arbitrary, mechanical, and non-application of mind , without considering the material facts and circumstances of the case. He would respectfully submit before this Hon’ble Court that the impugned show cause notice and the consequential impugned order have been passed in complete disregard of the settled principles of service jurisprudence, without any justifiable cause, and with a predetermined mindset to deprive the petitioner of his lawful promotion and consequential benefits. It is submitted that the petitioner has been duly promoted and had joined the promotional post at Civil Hospital, Deobhog, District Gariyaband on 23/08/2022 in compliance with the order dated 18/08/2022. Subsequently, the petitioner made a valid representation citing

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personal reasons and inconvenience concerning the place of posting. The said representation was duly considered by respondent authorities, who himself proposed the amendment of the posting order due to the absence of a sanctioned post of Accountant in his office. Pursuant thereto, respondent No.2 passed the amended order dated 01/09/2022, posting the petitioner at the office of Chief Medical and Health Officer, Gariyaband. It is further submitted that the petitioner has acted bonafide throughout and has not concealed any material fact from the respondents. The action of the petitioner has been in compliance with the orders of the respondents. The respondents, having themselves amended the posting order after due consideration of the petitioner’s representation and the recommendation of respondent authorities, are now estopped from taking a contrary stand and attempting to withdraw the benefits conferred upon the petitioner through the lawful promotion. Learned counsel would further submit that there is no violation of any rule or law governing the field and the respondents' contention that the amendment could only be made if the petitioner had not complied with the earlier posting order is wholly erroneous and misconceived. The petitioner had duly complied with the original posting and only thereafter the amendment order was passed, altering his place of posting. The learned counsel also submits that the impugned show cause notice and the consequential order are arbitrary, unreasonable,

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and without the authority of law, and have been issued merely to harass the petitioner and to take away his legitimate right of promotion and posting without any basis. It is also submitted that the petitioner’s rights have been infringed without any cogent reason, and the respondents’ action suffers from the principle of estoppel. The respondents cannot now turn around and question their own action after having passed the amended posting order themselves. Therefore, the learned counsel for the petitioner prays that the impugned show cause notice and the impugned order be quashed.

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5. On the other hand, learned State counsel opposes the submissions advanced by the learned counsel for the petitioner and submits that considering the grievance of the petitioner and pursuant to the proposal of the Chief Medical and Health Officer, District Gariaband, dated 26/08/2022, an amended order dated 01/09/2022 was issued by the Divisional Joint Director, Health Services, Raipur (CG), whereby the petitioner was posted to the Office of the Chief Medical and Health Officer, District Gariaband (CG). Accordingly, the impugned order dated 23/12/2022 was passed, cancelling the amended posting order dated 01/09/2022. It is submitted that there is neither any illegality nor ambiguity in the said cancellation order, as it cannot be said that any executed order has been cancelled. In fact, the order dated 18/08/2022 had already been executed, and the subsequent amendment dated 01/09/2022 was contrary to the rules. The conduct of the

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petitioner is in violation of Rule 3 of the Chhattisgarh Civil Services (Conduct) Rules, 1965. On account of the said conduct, the impugned show cause notice dated 23/12/2022 was issued to the petitioner. Insofar as the challenge raised by the petitioner against the impugned show cause notice is concerned, it is respectfully submitted that the same is not maintainable at this stage, as the petitioner ought to await the decision of the disciplinary authority. Hence, the present petition is premature and not maintainable.

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6. I have heard learned counsel for the parties and perused the documents annexed with the writ petition.

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7. The Co-ordinate Bench of this Court, vide order dated 19.01.2023, has passed the interim order in favour of the petitioner to the following effect :-

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“Learned counsel for petitioner submits that vide order of promotion dated 18.08.2022 (Annexure P-4), petitioner was promoted from the post of Assistant Grade - III to Assistant Grade -II and posted at Civil Hospital, Deobhog, but he was having difficulty with his transferred place of posting.

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However, considering period of joining as mentioned in promotion order, he joined the promoted place on 23.08.2022. After joining, he submitted representation before respondent No.2 for change of his posting place. Considering said representation,

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respondent No.2 has amended his place of posting vide Annexure P-7 dated 01.09.2022 and posted him at office of District Malariya Officer, Raipur. On 06.09.2022, petitioner joined amended place of posting. Subsequently, vide Annexure P-1 dated 23.12.2022, respondent No.2 has cancelled the amended place of posting of petitioner only on the ground that he has not mentioned in representation that he has already joined the promoted place of posting ie Civil Hospital, Deobhog and also issued show-cause-notice Annexure P-2 dated 23.12.2022 seeking clarification and consequential action to be taken against him for cancellation of promotion.

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Learned State Counsel submits that he may be granted short time to seek instruction in the matter.

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Heard counsel for the parties and perused documents annexed alongwith writ petition.

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Considering facts of the case, documents placed on record, submission of counsel for petitioner, purely as an interim measure, it is directed that effect and operation of impugned orders Annexures P-1 and P-2 shall remain stayed till the next date of hearing.”

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8. At this stage, learned counsel for the petitioner submits that without there being any misrepresentation on the part of the

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petitioner, the amendment made in the posting order has been arbitrarily cancelled. Thereafter, show cause notice dated 23/12/2022 were issued to the petitioner. It is further submitted that this Hon’ble Court, vide its order dated 19/01/2023, has been pleased to issue notice to the respondents and has also stayed the effect and operation of Annexure P/1 and Annexure P/2. Since Annexure P/1 and Annexure P/2 dated 23/12/2022 is merely a show cause notice, the petitioner is required to file an appropriate reply to demonstrate his bonafide conduct. Learned counsel further submits that the petitioner has already filed a representation before the concerned authorities, bringing forth all relevant facts and explaining his bonafide actions in the matter, hence a direction be issued to decide his pending representation at the earliest.

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9. In view of the above discussion, this Court directs the respondent authorities to consider and decide the petitioner’s representation strictly in accordance with law, after taking into consideration the petitioner’s reply to the show cause notice dated 23/12/2022 .

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10. Till the decision on the said representation and show cause notice is taken, the interim protection granted by this Court vide order dated 19/01/2023 shall remain in force.

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11. It is made clear that this Court has not expressed any opinion on the merits of the case, and the concerned authorities are free to

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pass an appropriate order in accordance with law and the facts of the case.

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12. With the aforesaid observations and directions, the writ petition stands disposed of.

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Sd/-

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(Amitendra Kishore Prasad) Judge