HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION S No 7126 of 2008
Amar Singh Raj & Others
...Petitioners
Versus
State of Chhattisgarh & Others
...Respondents! Shri Anil Singh Rajput Advocate for the petitioner
^ Shri P K Bhaduri Panel Lawyer for the State respondents
CORAM: Honble Shri Satish K Agnihotri J
Dated: 31/03/2010
: Judgement
ORDER ORAL
Passed on 31st day of March 2010
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
1. Challenge in this petition is to the order dated
10.10.2008 (Annexure P/5) whereby promotion of the
petitioners to the post of Lecturer by order dated
27.09.2008, has been cancelled and the order dated
02.12.2008 (Annexure P/7), whereby the representation of the
petitioners against the cancellation of their promotion was
rejected by the Commissioner, Public Instructions,
Government of Chhattisgarh.
2. The indisputable facts, in nutshell, are that the
petitioners were working as Physical Training Instructor
when their case was considered and recommended for promotion
to the post of Lecturer by the Departmental Promotion
Committee after following due process of selection. The
petitioners were promoted to the post of Lecturer, History,
Political Science and Economics, respectively and
thereafter, they joined accordingly. Within a period of 14
days, to their utter surprise, they received the order dated
10.10.2008 whereby their promotion was cancelled on the
ground that they were not eligible for promotion.
Thereagainst, the petitioners made representations which
were also rejected by a common order dated 02.12.2008. Thus,
this petition.
3. According to Shri Rajput, learned counsel appearing for
the petitioners, the post of Physical Training Instructor is
equal to the post of Upper Division Teacher and as such
under the provisions of Chhattisgarh School Shiksha
Rajpatrit Sewa (Shala Stariya) Bharti Tatha Padonnati Niyam,
2008 (for short `the Niyam, 2008), the petitioners are
entitled to be considered and promoted to the post of
Lecturer. Even otherwise, the appointment has been cancelled
without affording an opportunity of hearing. Thus, the
impugned orders are vitiated and deserve to be quashed.
4. Per contra, Shri Roy, learned counsel appearing for the
respondents submits that the petitioners are not eligible to
be considered for appointment on the post of Lecturer as
Schedule II to the Rules, 2008 clearly provides that 100%
posts of lecturer would be filed up from feeder cadre of
Upper Division Teachers having the requisite experience of
three years. Since the promotion was not in accordance with
law and the facts are admitted, no show cause notice or
opportunity of hearing was necessary as it would have become
a mere formality.
5. Heard learned counsel for the parties, perused the
pleadings and documents appended thereto.
6. Schedule II to the Rules, 2008 provides for appointment
of lecturers on promotion from the post of Upper Division
Teachers cadre having different experiences. Reliance of the
petitioner that the order dated 02.12.2008 itself indicates
that the PTIs are equal to Upper Division Teacher, the
petitioners are eligible to be considered for promotion on
the post of Lecturer, is not sustainable as on careful
consideration of the entire order, it is clear that there is
no provision for promotion to the post of Lecturer from the
post of PTI. It was clarified that the PTI can be considered
for promotion to the post of Assistant District Sports
Officer and Lecturer, Physical Training only.
7. With regard to show cause notice, law is well settled
that the principles of natural justice cannot be put in a
straitjacket. It depends on other factors also, viz. whether
affording opportunity of hearing would serve any purpose,
when the facts are admitted. In the case, the legal position
is clear, even the qualification of the petitioners are also
admitted. Thus, it was not necessary to afford opportunity
of hearing before passing the impugned order.
8. In the case of Ashok Kumar Sonkar v. Union of India &
Others1, relied on by the respondents, the Hon’ble Supreme
Court held as under:
“26. This brings us to the question
as to whether the principles of
natural justice were required to be
complied with. There cannot be any
doubt whatsoever that the audi
alteram partem is one of the basic
pillars of natural justice which
means no one should be condemned
unheard. However, whenever possible
the principle of natural justice
should be followed. Ordinarily in a
case of this nature the same should
be complied with. Visitor may in a
given situation issue notice to the
employee who would be effected by the
ultimate order that may be passed. He
may not be given an oral hearing, but
may be allowed to make a
representation in writing.”
“27. It is also, however, well
settled that it cannot put any
straitjacket formula. It may not be
applied in a given case unless a
prejudice is shown. It is not
necessary where it would be a futile
exercise.”
“28. A court of law does not insist
on compliance with useless formality.
It will not issue any such direction
where the result would remain the
same, in view of the fact situation
prevailing or in terms of the legal
consequences. Furthermore in this
case, the selection of the appellant
was illegal. He was not qualified on
the cut-off date. Being ineligible to
be considered for appointment, it
would have been a futile exercise to
give him an opportunity of being
heard.”
9. The Hon’ble Supreme Court in Viveka Nand Sethi v.
Chairman, J&K Bank Ltd. & others2, held as under:-.
“22. The principle of natural
justice, it is trite, is no
unruly horse. When facts are
admitted, an enquiry would be an
empty formality. Even the
principle of estopple will apply.
(See Gurjeewan Garewal (Dr.) v.
Dr. Sumitra Dash) The principles
of natural justice are required
to be complied with having regard
to the fact situation obtaining
therein. It cannot be put in a
straitjacket formula. It cannot
be applied in a vacuum without
reference to the relevant facts
and circumstances of the case.
(See State of Punjab v. Jagir
Singh and Karnataka SRTC v.
S.G.Kotturappa)”
10. Looking from all angles, the petition fails and is
accordingly dismissed. However, having regard to the fact
that the letter dated 20.08.2008 (Annexure P/8) whereby all
the District Education Officers have been directed to send
the information with regard to ACRs and other relevant
information of the Music Teacher and PTIs for consideration
of their candidature for promotion to the post of Lecturer,
the same may be done at the earliest.
JUDGE