Back
1997 Supreme(MP) 800
1998 (2) JLJ 284
S.C. Pandey, J.
Rakesh Kumar Pradhan v. State of M.P. and others
W.P. No. 1529 of 1996; Decided on 21.11.1997.
K.K. Pandey for petitioner; V. Awasthy, Govt. Advocate for State.
Headnote:(1) Constitution of India -- Arts. 226 and 227 -- termination of municipal employee after two years -- service not found unsatisfactory -- termination on ground of audit note without application of mind -- such order of termination liable to be quashed. [Para 6
(2) Civil Servant -- illegally appointed -- order is liable to be corrected . within reasonable period. [Para 6
(3) Civil Servant -- recruited and served for two years -- cannot be thrown out by discovering mistake in appointment order -- employer is estopped either by promissory or equitable estoppel. [Para 7
(4) Natural Justice -- services of employee -- cannot be terminated without hearing him -- his point of view should be considered. (1984) 3 All ER 935 relied on. [Para 7
(5) Estoppel-- petitioner‘s appointment found mistakenly after two years of service-- appointing authority Cannot cancel such appointment being promissorily estopped. 1978 JLJ 182 (FB) relied on. [Para 8
¼1½ Hkkjr dk lafo/kku && vuq- 226 rFkk 227 && uxjikfyd deZpkjh dh nks o"kZ i‘pkr~ lsoklekfIr && lsok vlek/kkuizn ugha ikbZ xbZ && lsoklekfIr ys[kkijh{kk ij ls] euksfu;ksx fd, fcuk && lsoklekfIr dk ,slk vkns‘k vfHk[kafMr fd, tkus ;ksX; gSA ¿ iSjk 6À
¼2½ flfoy lsod && voS/k :i ls fu;qDr && vkns‘k ;qfDr;qDr vof/k ds Hkhrj ‘kq) fd, tkus ;ksX; gSA ¿ iSjk 6À
¼3½ flfoy lsod && HkrhZ fd;k x;k rFkk nks o"kZ rd lsok dh && fu;qfDr vkns‘k esa xyrh izdV gksus ij ckgj ugha fudkyk tk ldrk && fu;ksDrk opu&foca/k vFkok lkE;kiw.kZ foca/k }kjk focaf/kr gSA ¿ iSjk 7À
¼4½ uSlfxZd U;k; && deZpkjh dh lsok && mls lqus fcuk lekIr ugha dh tk ldrh && mlds –f"Vdks.k ij fopkj fd;k tkuk pkfg,A ¼1984½3 vky bZ vkj 935 voyafcrA ¿ iSjk 7À
¼5½ foca/k && ;kph dh fu;qfDr xyrh ls dh xbZ gksuk nks o"kZ i‘pkr~ Kkr && fu;qfDrdrkZ izkf/kdkjh }kjk ,slh fu;qfDr] opu focaf/kr gksus ds dkj.k] jÌ ugha dh tk ldrhA 1978 ts ,y ts 182 ¼iw.kZ U;k;ihB½ voyafcrA ¿ iSjk 8À
1. This petition under Articles 226 and 227 of the Constitution of India is directed against the order dated 30.3.1996, Annexure A-3 passed by the Chief Municipal Officer, Nagar Panchayat, Sakti, District Bilaspur. The disposal of this petition shall also govern the disposal of writ petition No. 1569 of 1996 whereby identical order has been passed in respect of the petitioner Hemchand Yadav.
2. The facts of this case are that the petitioner was appointed on probation by the order dated 28.10.1994 Annexure A-1 as a Peon. After expiry of the period of probation, the petitioner was liable to be made permanent. However, by order dated 30.3.1996, Annexure A-3, the respondent No. 4/Chief Municipal Officer, Nagar Panchayat, Sakti, District Bilaspur terminated the services of the petitioner saying that the senior auditor of the local funds audit, Bilaspur had raised an objection regarding compassionate appointment of the petitioner saying that he could not be appointed. The Chief Municipal Officer further said that after going through the resolution of the Panchayat dated 25.3.1996 and also in accordance with objection of the senior auditor, the services of the petitioner are terminated. This order also governs the case of the petitioner Hemchand Yadav in writ petition No. 1569 of 1996.
3. It is clear from the order that the services of the petitioner have not been terminated on the ground that the respondent No. 4/Chief Municipal Officer found the services of the petitioner-unsatisfactory. The termination of the services of the petitioner shows that there was the •resolution of the Nagar Panchayat, Sakti, District Bilaspur as well as an objection of the senior auditor regarding the compassionate appointment of the petitioner. It is obvious that by the impugned order dated 30.3.1996, the Chief Municipal Officer sought to correct the mistake in the initial appointment order dated 28.10.1994.
4. Learned counsel for the petitioner raised two serious objections to the passing of the order in this manner. Firstly, it is said that the Chief Municipal Officer was bound to apply his mind to the objection of the senior auditor and should not have passed the order on the basis of an objection of another authority. It was not given to that authority to consider the termination of the services of the petitioner. Neither the Nagar Panchayat nor the senior auditor aforesaid had any power to direct the respondent No. 4/Chief Municipal Officer to dismiss the petitioner. Therefore, it appears that the respondent No.4 has not corrected his own mistake by the impugned order dated 30.3.1996. Learned counsel for the petitioner further argues that the order dated 30.3.1996 was passed without any notice to the petitioner on the objection raised by the senior auditor and further it was argued that this way of correcting the mistake would attract the principles of estoppel. The principles of equitable estoppel or promissory estoppel debarred the respondent No.4 from correcting the• mistake after almost two years of appointment.
5. Learned counsel for the respondent Nos. 1,2 and 3, however, argued that the initial compassionate appointment was bad because the petitioner had misrepresented to the respondent No.4 that he was entitled to compassionate appointment. He could not be so appointed. He was not entitled to compassionate appointment under the facts and circumstances of the case as he could be appointed only on the ground of death of his relative who was serving in the Nagar Panchayat. Therefore, the initial appointment order of the petitioner was void ab initio.
6. Having considered the rival contention of the parties, this Court is of the opinion that the order of termination of services of the petitioner dated 30.3.1996 passed by the respondent No.4 is liable to be quashed by issuance of a writ of certiorari. It is clear from the order that the petitioner was not discharged from the services on the ground of unsatisfactory work. The order itself shows
