Violation of principles of natural justice and the need for the new incumbent to make way for the reinstated employee.

ORDER : – The present petition has been filed by the petitioner under Article 226/227 of the Constitution of India seeking following reliefs : –

“(a) That, the order Annexure P/1 may kindly be quashed. (b) That, any other just and proper relief, warranting under the facts and circumstances of the case be also given to the petitioners, including cost, in the ends of justice. 7.1 (a) That, the respondent be directed to reinstate the petitioner in service with all consequential benefits.”

2. Present petition is preferred against the order dated 7-10-2015 passed by the Project Officer, Integrated Child Development Scheme, Gohad, District Bhind (respondent No. 3 herein), whereby services of petitioner from the post of Aanganwadi Sahayika have been terminated.

3. Precisely stated facts of the case are that petitioner was appointed as Aanganwadi Sahayika vide order dated 19-3-2010 and worked for more than 5 years on the said post. It appears from the impugned order that on 7-10-2015, Commissioner, Chambal Division, Morena (respondent No. 2 herein) visited Aanganwadi Kendra No. 3 at Gurikha where petitioner was posted and found her absent. Therefore, he instructed the Project Officer to take instant action by way of removal of service of petitioner. In response to the said instruction, respondent No. 3 immediately removed the petitioner from service as per the policy dated 10-7-2007 (Annexure P/5). Being aggrieved by the said order of termination, petitioner, without resorting to appeal before the Collector, approached this Court and vide order dated 12-7-2016, this Court issued notice to the respondents that any appointment made subsequent to passing of that order will be subject to final outcome of the writ petition.

4. From submissions and record, it appears that respondent No. 4 was appointed in place of petitioner vide appointment order dated 30-12-2016 admittedly after the passing of order dated 12-7-2016. Meanwhile, one more petition preferred by similarly placed Aanganwadi Sahayika who also suffered removal because of instruction of Commissioner, Chambal Division, vide Writ Petition No. 7591/2015, Smt. Rajkumari Sharma vs. State of Madhya Pradesh and others, which was allowed vide order dated 15-7-2016 by the Coordinate Bench of this Court on the ground of non-affording of any opportunity of hearing, but somehow this petition kept pending.

5. It is the submission of learned counsel for petitioner that case suffers from non-compliance of principles of natural justice, because at the first instance no opportunity of hearing was given to petitioner and inspection carried out on 7-10-2015 and on same day i.e. 7-10-2015, impugned order has been passed. He relied upon the judgments in the cases of Nisha Devi vs. State of H. P. and others, (2014) 16 SCC 392 and Kansa vs. State of Madhya Pradesh and others, 2015(4) M.P.L.J. 151.

6. It is further submitted that since Commissioner instructed the Project Officer to proceed against petitioner for termination, therefore, appeal before the Collector, District Bhind (as Appellate Authority) who happens to be under the administrative jurisdiction of Commissioner, Chambal Division, would not have been an effective remedy and it would have been an empty formality. He also raised the point that second appeal would go ultimately before the same authority (i.e. Commissioner Chambal Division) who instructed the Project Officer to remove petitioner. Therefore, at second appeal stage also, she would not have got fair hearing. He relied upon the judgment in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 to meet out the argument of alternative remedy.

7. It is also the submission of learned counsel for the petitioner that when the Court granted interim order with a word of caution about any appointment subsequent to filing of petition, and if any, appointment is made then it shall be subject to the final outcome of writ petition and when on the same se