Rajesh Kumar Shukla vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—W.P. (S) Nos. 7658/2010, 371/2011 & 372/2011, involved common facts and a common question of law and, as such, they are being considered and disposed of by this common order. Challenge in these petitions is to the show cause notice dated 29.11.2010 (Annexure P-1), which was issued to the petitioners after having taken decision on 28.11.2005 to cancel promotion of the petitioners to the post of Upper Division Teacher.

The indisputable facts, in brief, are that the petitioners were appointed as Assistant Teachers. The respondent No. 6 was promoted to the post of Upper Division Teacher and the petitioners were denied the benefit of promotion though they were similarly placed.

One of the petitioners, filed a writ petition being W.P. No. 599/2003 (Annexure P-7). This Court by order dated 26.4.2003, directed the petitioner to make a detailed representation to the competent authority to decide the same In accordance with law. It was further observed that if any adverse order passed and the petitioner thereby aggrieved, he may file, a fresh petition challenging the order.

Pursuant thereto the petitioners were promoted to the post of Upper Division Teacher by order dated 2.6.2003 & 18.6.2003, which was confirmed by memo dated 4.3.2004 (Annexure P-10). Thereafter, notice was issued to the petitioners on 30.12.2005 (Annexure P-13) calling upon the petitioners to cancel the promotion order dated 2.6.2003 & 18.6.2003. Being aggrieved, the petitioners approached this Court again in W.P. No. 505/2006434/2006 & 435/2006 respectively.

The Court having considered all the aspects of the matter, granted interim order in favour of the petitioners on 6.2.2006 (Annexure P-14). The matter was thereafter disposed of on 22.4.2010: (Annexure P-15), holding that since the order of promotion was not passed and there was no cause of action, the petition was dismissed as premature. However, liberty was reserved to the State respondents to issue fresh show cause notice to the petitioners, if so advised. Pursuant thereto, the impugned show cause notice was issued.

Learned counsel appearing for the petitioners submits that the impugned show cause notice has been issued after having taken the decision to cancel the promotion of the petitioners to the higher post. Thus, it amounts to post decisional notice.

The petitioners impugned the earlier memo dated 30.12.2005 (Annexure P-13). This Court by order dated 22.04.2010 in W.P. No. 437/2006 (Shekhuram Sahu v. State of Chhattisgarh & Others) held that memo dated 30.12.2005 was not a proper show cause notice, as the contention of the petitioner, therein, was that a notice was post decision notice Accordingly, the impugned memo was quashed. However, liberty was reserved to the State respondents to issue fresh show cause notice, if so advised.

Pursuant to the liberty granted in W.P. No. 425/2006 (Hiralal Kosare v. State of Chhattisgarh & Others) (supra) and other connected matters, the State respondents have issued identical show cause notice on 29.11.2010 holding that the order of promotion dated 2.6.2003 & 18.6.2003 were quashed by order dated 28.11.2005. Thereafter, again a show cause notice was Issued in the same fashion after taking adverse decision against the petitioners. The said practice has been deprecated In the earlier petition. Thus, the impugned show cause notice Is contrary to the well settled principles of law.

The Supreme Court in Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central & Another held that even in absence of express provision for affording an opportunity of pre-decision a hearing, the principles of natural justice is to be followed before taking a decision, It was further observed as under:-

We are also unable to persuade ourselves to agree with the proposition canvassed by learned counsel for the Revenue that since a post-decisional hearing in terms of sub-section (3) of Section 142 is contemplated, the requirement of natural justice is fully met. Apart from the fact that ordinarily a post decisional hearing is no substitute for pre-decisional hearing, even from the language of the said provision it is plain that the opportunity of being heard is only in respect of the material gathered on the basis, of the audit report submitted under sub-section (2-A) and not on the validity of the original order directing the special audit. It is well settled that the principles audi alteram partem can be excluded only when a statute contemplates a post-decisional hearing amounting to a full review of the original order on merit, which, as explained above, is not the case here.

In the case on hand, there is no statutory provision to provide post-decisional hearing, which necessitates review of the order in full. Applying the well settled principles of law to the facts of the case where admittedly decision to quash the earlier order of promotion was taken before issue of show cause notice. Thus, show cause notice is vitiated. In view of foregoing reasons, the impugned notice dated 29.11.2010 is quashed. Accordingly, the writ petitions are allowed. No order as to costs.