INDER CHAND RAKECHA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) BY this petition, the Petitioner seeks a direction to quash the order dated 05.04.2007 (Annexure P/2) passed by the Respondent No. 2, whereby the appointment of the Petitioner by order dated 02.08.2006 was cancelled on the ground that due to bona fide mistake his appointment was made against the reserved post in excess of vacancy. The indisputable facts, in nutshell, are that the Petitioner is a practicing Advocate. BY order dated 01.08.2006 (Annexure P/1) the Petitioner was appointed as Notary in and throughout Tahsil Balod, District Durg. Subsequently, thereafter by order dated 05.04.2007 (Annexure P/2), the appointment of the Petitioner as Notary was cancelled on the ground that the appointment was made due to bona fide mistake against the reserved post. There was vacancy of Notary in Tashil Balod, District Durg. According to the Respondents No. 1 and 2/State, as per notification dated 23.08.2002 (Annexure R/1), there were six sanctioned posts for Balod, out of six Notaries, two Notaries were allowed to function at Dallirajhara for administrative convenience. BY mistake, eight appointments were made in Tashil Balod District, Durg against six sanctioned posts of Notaries. The appointment of the present Petitioner as Notary was challenged in the Court in Writ Petition No. 4011 of 2006 (Santosh Chandparekh and 5 others v. State of Chhattisgarh and two others) on the ground that the appointment of the Petitioner was in excess of posts available in Tahsil Balod, District Durg. The mistake was immediately rectified and thus, the appointment of the Petitioner being in excess of the sanctioned posts, was cancelled. This Court, after having considered the issue of appointment of the Petitioner in Writ Petition No. 4011/2006 (Santosh Chandparekh & 5 others v. State of Chhattisgarh & 2 others), wherein the Petitioner was a party-Respondent, dismissed the said petition as having become infructuous as the Respondents No. 1 and 2/State passed the order, which is impugned herein. The Petitioner in person, who was a party Respondent in Writ Petition No. 4011/2008, did not question passing of the impugned order and accepted the same when the said petition was dismissed as having become infructuous.

(2.) THE question arises as to whether the Petitioner be permitted to challenge the said order on the basis of which the earlier Writ Petition No. 4011/2006 was found infructuous. THE Petitioner was a party Respondent in the said petition and did not raise any objection when in view of cancellation of his appointment, the said petition was held as infructuous. Shri Indar Chand Rakecha Petitioner in person submits that the impugned order dated 05.04.2007 (Annexure P/2) is bad and deserves to be quashed on the sole ground that he was not afforded an opportunity of hearing before the order was passed. He further submits that the order involves civil consequences. Thus, it was necessary to follows the principles of natural justice and fair play in-action. Shri Vinay Harit, learned Deputy Advocate General with Shri S.K. Mishra, learned Panel Lawyer appearing for the Respondents No. 1 and 2/ State per contra, submits that the order dated 02.08.2006 appointing the Petitioner as Notary in Tashil Balod, District Durg was invalid and void as the appointment was made in excess of vacancy available. Six Advocates appointed as Notaries were already working in Tahsil Balod, District Durg. Learned Counsel further submits that even otherwise, the dispute with regard to the appointment of the Petitioner as Natory was considered at length in Writ Petition No. 4011/2006 and during pendency of the said petition when the appointment of the Petitioner as Natory was cancelled, the said petition was dismissed as having become infructuous. THE present Petitioner was a party Respondent No. 3 in the said writ petition and he did not raise any objection when the Court found that in view of the subsequent order dated 05.04.2007, which is impugned herein, Writ Petition No. 4011/2006 became infructuous. Smt. Fouzia Mirza, learned Counsel appearing for the intervener adopts the submission made by learned Counsel appearing for that Respondents No. 1 and 2/State. 1 have heard learned Counsel appearing for the parties, perused the pleadings and documents appended thereto. It is evident that appointment of the Petitioner was in excess of sanctioned strength i.e. six Noaries in Tahsil Balod, District Durg. When the appointment of the Petitioner was challenged in Writ Petition No. 4011 of 2006, wherein the Petitioner was a party Respondent No. 3, the appointment of the Petitioner which was invalid, was cancelled, this Court found that the writ petition No. 4011 of 2006 became infructuous. I do not find any infirmity in the impugned order. With regard to the principles of natural justice, as the Petitioner was not afforded an opportunity of hearing, the Petitioner was given full opportunity; firstly in Writ Petition No. 4011/2006 and secondly in this writ petition. THE Petitioner could not make out a case of prejudice when opportunity of hearing was given to him. Had the Petitioner been given opportunity of hearing, the impugned order would not have been different. It is admitted by all the parties that the appointment of the Petitioner was in excess of sanctioned strength of Notaries in Tahsil Balod.