Imtiyaz Momin Ansari vs State Of Chhattisgarh

Proceedings of this matter have been taken-up through video conferencing.

The petitioner calls in question the order passed by the Chief Executive Officer, Zila Panchayat, Surguja, dated 1-8-2011 by which the said authority

with approval of the Collector has directed the Chief Executive Officer, Janpad Panchayat, Bhaiyathan that the petitioner’s appointment be

cancelled, as he has obtained appointment on the post of Shiksha Karmi Grade-III on the basis of forged certificate.

Mr. Manoj Paranjpe, learned counsel appearing for the petitioner, would submit that the appointing authority of the petitioner is Janpad Panchayat,

Bhaiyathan and the Chief Executive Officer, Zila Panchayat, Surguja is not his appointing authority, therefore, no direction can be issued for

cancellation of appointment of the petitioner that too on the basis of enquiry conducted beyond his back in view of the decision of the Supreme Court

in the matter of Joint Action Committee of Air Line Pilots’ Association of India (ALPAI) and others v. Director General of Civil Aviation and

others (2011) 5 SCC 435. He would further submit that the petitioner has already been acquitted from the criminal charges on 30-10-2018.

Mr. Siddharth Dubey, learned State counsel, and Mr. Pawan Shrivastava, learned counsel for respondents No.3 to 5, would support the impugned

order.

I have heard learned counsel for the parties and considered their submissions made herein-above and also went through the record with utmost

circumspection.

It is not in dispute that the petitioner’s appointing authority on the post of Shiksha Karmi Grade-III is Janpad Panchayat, Bhaiyathan and Janpad

Panchayat, Bhaiyathan falls within the administrative control of Zila Panchayat, Surguja, but the Chief Executive Officer of Zila Panchayat, Surguja

cannot take the position of disciplinary authority of the petitioner and therefore disciplinary action, if any, has to be taken by the Janpad Panchayat

who is the disciplinary authority of the petitioner and thus, the CEO, Zila Panchayat, Surguja cannot make any direction for cancellation of

appointment of the petitioner, if any.

The Supreme Court in Joint Action Committee of Air Line Pilots’ Association of India (supra) while dealing with mandatory need of exercise of

power / discretionary power in administrative or executive function held that if any decision is taken by a statutory authority at the behest or on

suggestion of a person who has no statutory role to play, the same would be patently illegal. It was observed by their Lordships in paragraphs 27 and

28 of the report as under: -

“27. Similar view has been reiterated by this Court in Commr. of Police v. Gordhandas Bhanji AIR 1952 SC 16, Bahadursinh Lakhubhai Gohil v.

Jagdishbhai M. Kamalia AIR 2004 SC 1159 and Pancham Chand v. State of H.P. AIR 2008 SC 1888 observing that an authority vested with the

power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any

authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme.

In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the

order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner.â€​

Reverting to the facts of the case in the light of the decision of the Supreme Court in the aforecited case, the petitioner’s appointing authority

being Janpad Panchayat, Bhaiyathan admittedly and undisputedly, the CEO, Zila Panchayat, Surguja has no authority and jurisdiction to direct for

cancellation of the petitioner’s appointment as it is the sole jurisdiction and authority of the disciplinary authority i.e. Janpad Panchayat, Bhaiyathan

to initiate disciplinary action against the petitioner and no direction can be issued by the higher authority to cancel appointment. In that view of the

matter, order dated 1-8-2011 passed by the Chief Executive Officer, Zila Panchayat, Surguja, is hereby set aside qua the cancellation of appointment

only of the petitioner. However, Janpad Panchayat, Bhaiyathan is at liberty to proceed in accordance with law.

The writ petition is allowed to the extent indicated herein-above. No order as to cost(s).