1. The petitioner has invoked Article 226 of the Constitution of India challenging order dated 01/02/2022 (Annexure- P/1), whereby their services from the post of Assistant Warden have been dispensed with. They have also prayed for their re-instatement in service with back wages. Since all the petitions involve similar facts and issue for determination, they are considered and decided by this common order. For purposes of convenience, the facts are taken from W.P. No. 3770 of 2022.

2. In order to provide quality education to the deprived category of girls students, the Government of India formulated a project namely Kasturaba Gandhi Girls School/Hostel Project. Under this project initially in 27 districts of State of Madhya Pradesh, Kasturaba Gandhi Girls Schools/Hostels were established during the period from 2005 to 2008. Further, in anticipation of permission to establish 35 more schools, the Commissioner, Rajya Shiksha Kendra issued instructions to initiate process for selection of middle schools in each Development Block to be nominated as Kasturba Gandhi School and to arrange for residence of 50 girls students in each school so that session can be started immediately on receiving the permission from Government of India. These facts are evident from the instructions issued by the Commissioner, Rajya Shiksha Kendra vide memo dated 27/03/2006 (Annexure-P/2). Vide circular, dated 27/03/2006, instructions were also issued laying down the qualification and procedure for appointment of staff for the schools including Warden, Assistant Warden, Accountant etc. For purposes of the present case, the qualification and procedure prescribed for appointment of Assistant Warden is relevant. As per the instructions issued vide circular dated 27/03/2006 (Annexure-P/2), the procedure for appointment of Assistant Warden is as under:-

          (i) Applications should be invited by way of advertisement;

          (ii) Applications received should be scrutinized by the District Gender Core Group;

          (iii) Ultimate selection and posting should be done by the Chief Executive Officer, Jila Panchayat with the approval of the Collector.

3. The petitioner in this case claims to have been appointed as Assistant Warden of Kasturba Gandhi Balika Vidyalaya (KGBV) at Tendua, District- Shivpuri. In support of her claim, she relied upon the resolution passed on 25/09/2007 by the Parents-Teacher Association (in short 'PTA') on 25/09/2007 (Annexure-P/4). Pursuant to this resolution, the appointment order was issued in favour of the petitioner on 26/09/2007 by the Warden of the school. The petitioner was thus working ever since till the impugned order was passed. In the writ petition, the petitioner has averred that she has been sent for training from time to time and further vide memo dated 18/11/2016, she alongwith others were recommended for extension in service. She has further stated that honorarium for the post of Assistant Warden was revised from time to time as is evident from documents filed as Annexure-P/7 and further that she was paid the revised honorarium as is reflected from documents filed as Annexure- P/8.

4. One Sonu Raghuvanshi lodged a complaint on 10/08/2020 alleging that appointments on the post of Assistant Warden in various Kasturba Gandhi Schools in District Shivpuri have been made illegally and de-hors the procedure prescribed. The complaint was addressed to the District Programme Coordinator, Jila Shiksha Kendra, Shivpuri (Annexure- R/1). Taking cognizance of the complaint, the Collector, Shivpuri constituted a four member committee to enquire into the matter. However, in the meantime, the complainant approached this Court by filing a Public Interest Litigation being W.P. No.14233/2020. The PIL was disposed off by this Court vide order dated 26/11/2020 thereby giving liberty to the complainant to file a fresh representation to the competent authority and the said authority was directed to consider and pass a speaking order and communicate the same to the complainant.

5. The four member committee constituted by the Collector submitted its report on 22/06/2021 (Annexure- R/2). From the report, it appears that the committee summoned the concerned candidates including the petitioners before submitting its report. The committee found that out of sixteen candidates, the appointment of eight candidates was valid while the remaining eight were appointed de- hors the procedure prescribed. These eight candidates included the petitioners of these writ petitions.

6. The report submitted by the committee was forwarded by the Collector, Shivpuri to the District Appointment Committee vide memo dated 27/08/2021 and the same was also forwarded to the State Government for information on 09/08/2021.

7. While the matter was pending before the District appointment committee, the Chief Executive Officer, Jila Panchayat Shivpuri, who is also the District Programme Director of Jila Shiksha Kendra, Shivpuri issued a show-cause notice to the petitioners on 14/07/2021. This was done with the permission of the Collector who is also the District Mission Director of Rajya Shiksha Kendra.

8. The District Appointment Committee considered the report and concurred with the findings given by the committee. The appointments of the petitioners were found illegal and therefore, the District Appointment Committee recommended for cancellation of their appointment and also for taking disciplinary action against the officers who are responsible for making illegal appointments. It was directed that notices be issued to the concerned candidates before passing any order. Accordingly, another notice was issued to the petitioner on 02/09/2021 (Annexure-R/4). The reply was submitted by her. Accordingly, the District Appointment Committee again met on 30/09/2021 and resolved to terminate services of illegally appointed candidates. It was further directed that the posts be filled up in accordance with law. The impugned order, thereafter, came to be passed on 01/02/2022 (Annexure-P/1) by the Collector, Shivpuri whereby the services of the petitioner has been terminated. Challenging this order, the present writ petition has been filed.

9. Challenging the impugned action of the respondents, learned senior counsel for the petitioner argued that termination of appointment of the petitioner is in blatant violation of the principles of natural justice. It is his submission that the termination order is based upon some enquiry report which was never supplied to the petitioner. He further submitted that no reason has been assigned in the order as to why her appointment was bad in law. Referring to the impugned order, learned counsel submitted that the service of the petitioner has been terminated only by observing that the reply given by her is not found satisfactory. The learned counsel also submitted that termination of the petitioner's service is in violation of instructions issued by the School Education Department vide circular dated 09/03/2012 (Annexure-P/13) and 17/06/2011 (Annexure-P/14). He also submitted that in response to the show-cause notice, the petitioner has demanded the documents on the basis of which the impugned action is being taken against her. However, no such document was supplied and the impugned order has been passed. The learned counsel further submitted that the petitioner has been working since 2007 and has rendered about 15 years of service without any complaint. The termination of her service is, therefore, illegal, arbitrary and unreasonable.

10. On the other hand, learned Government Advocate for the respondents/State supported the impugned action of the respondents and submitted that the appointments of the petitioners have been found to be illegal and made without following procedure. He submitted that as per the instructions issued vide circular dated 27/03/2006, (Annexure- P/2), the application for appointment on the post of Assistant Warden was required to be scrutinized by the District Gender Core Group and the ultimate appointment was to be made by Chief Executive Officer of Jila Panchayat after approval of the Collector. However, in the instant case, no such procedure was followed and appointment of petitioner was made by Warden of Hostel on the basis of some resolution passed by PTA. Thus, apparently, the appointment of the petitioner is ex-facie illegal and de-hors the prescribed procedure. He further submitted that the petitioner was granted sufficient opportunity to present her case before the Committee before issuance of the impugned order. He pointed out that the petitioner when demanded for documents, was given an opportunity to inspect the documents in the office during 06/09/2021 to 07/09/2021. The petitioner inspected the record and thereafter, submitted the reply and, therefore, the allegation that the documents were not supplied, is not acceptable. The learned counsel further pointed out that even though the petitioners have continued in service for about 15 years, when the very appointment is found to be illegal, no equity can be given to them. In support of his submission, he placed reliance upon the judgment Gelus Ram Sahu and others Vs. Dr. Surendra Kumar Singh and others resported in (2020) 4 SCC 484 as also in the case of Professor (Dr) Sreejith P.S. Vs. Dr Rajasree M.S. and others reported in (2023) 17 SCC 338. He, thus, prayed for dismissal of the writ petition.

11. Considered the arguments and perused the record.

12. It is not in dispute between the parties that instructions for appointment on the post of Assistant Warden was issued vide circular dated 27/03/2006 (Annexure-P/2). Apart from prescribing qualification, the procedure for appointment was also laid down in the circular. As per the procedure prescribed, the advertisement was required to be published inviting applications, the received applications were to be scrutinized by the District Gender Core Group and thereafter, the final selection and posting was to be made by the Chief Executive Officer, Jila Panchayat with the approval of Collector. However, in the present case as per the petitioner's own submission, the resolution to appoint her was passed by the PTA on 25/09/2007 (Annexure-P/4) and the appointment order was issued by the Warden on 26/09/2007. Apparently, this was not in consonance with the procedure prescribed in the circular dated 27/08/2021. It is not the case of petitioner that she was appointed as per the procedure prescribed vide circular, dated 27/03/2006.

13. From the resolution passed by the PTA on 25/09/2007, it is gathered that since the Warden was facing difficulties in managing the affairs of the hostel in the Kasturba Gandhi Girls School, Tendua, the resolution to appoint the petitioner was passed. It also appears that the petitioner's appointment is based solely upon this resolution.

In other words, no advertisement was issued inviting applications, the application was not scrutinized by the District Gender Core Group, the approval from the Collector was not obtained and further the appointment order was not issued by the Chief Executive Officer, Jila Panchayat.

Like in the case of Smt. Seema Dhakad, in all these cases, the appointment of petitioners was made in similar manner and in none of the case, the procedure as prescribed in the circular was followed. The appointment order of none of the petitioners is issued by CEO of Jila Panchayat after approval of Collector.

14. The learned counsel for the petitioner vehemently argued that the findings recorded by the enquiry committee in its report dated 22/06/2021 are vague inasmuch as it does not specify as to what illegality was committed in the matter of petitioner's appointment. In this regard, the report submitted by the committee is examined. In the report, it is recorded that the appointment was made by the SMC (School Management Committee) on 26/09/2007 which does not specify the period of appointment nor the appointment order was approved by the District Gender Core Group. Thus, even though the report does not specifically state about the illegality in too many words however, it states that the appointment was made by the SMC and was not approved by the Gender Core Group. In the given facts of the case, it can be safely concluded that the committee has found the appointment of petitioner de-hors the procedure prescribed. Thus, it cannot be said that findings recorded by the committee was without assigning any reason. More so, when the illegality is apparent from the records, the same cannot be ignored merely on the ground that the finding recorded by the committee is not happily worded.

15. The learned petitioners' counsel tried to draw equity in favour of petitioners on the ground of her continued service for about 15 years. However, when the very inception of petitioner in service is found to be without following procedure and the appointment made by incompetent authority, no direction can be issued in her favour merely based on equity.

16. The learned petitioner's counsel further submitted that on 18/11/2016, a recommendation for extension of petitioner's service was made. However, this also cannot be a ground to upheld the appointment of petitioner inasmuch as while making recommendation for extension of her service, the authority did not examine the validity of her initial appointment.

17. The Apex Court was considering somewhat similar issue in the case of Dulu Deka v. State of Assam reported in (2023)9 SCC 749, wherein the Court held as under:-

          "7. The appellant claimed that she was appointed as an Assistant Teacher in Bengabari M.E. School against the vacancies in Udalguri Legislative Assembly Constituency by the Sub-Divisional Selection Board in the meeting held on 12-3-2001, pursuant to an advertisement dated 28-12- 1996 issued by the competent authority to fill up the regular posts of Assistant Teachers. However, no appointment letter was issued to the appellant in pursuance thereof. Rather, the appointment letter dated 12-3-2001 issued to the appellant by the District Elementary Education Officer, Darrang, Mangaldoi, shows that she was appointed as an Assistant Teacher in Bengabari M.E. School, which falls in Mangaldoi, a sub-division of Darrang District. As is noticed in the impugned order [Dulu Deka v. State of Assam, 2010 SCC OnLine Gau 781] passed by the Division Bench of the High Court, the same does not fall within the Udalguri Legislative Assembly Constituency.

          8. It is nowhere stated in the appellant's appointment letter that the said appointment was in pursuance of any advertisement issued or the candidates had undergone any selection process for the same. In fact, all the appointments made by the District Elementary Education Officer, Darrang, Mangaldoi, from 8-3-2001 to 31-3-2002 were declared to be illegal and void ab initio by the Director of Elementary Education vide Order dated 18-10-2001. The appointment of the appellant was also included therein. It was found that the District Elementary Education Officer had appointed 509 teachers illegally against non-existent posts."

          Similarly, in this case, though during the course of arguments, it was submitted on behalf of petitioners that they were appointed pursuant to the advertisement, however, the submission so made do not find support from any document. On the contrary, the documents filed by petitioners show that they were appointed pursuant to the resolution passed by SMS/PTA and their appointment orders are also not issued by competent authority i.e. CEO of Jila Panchayat after approval by Collector.

18. The Division Bench of this Court in the case of Mansukh Lal Saraf v. Arun Kumar Tiwari reported in 2016(2) MP LJ 283 was dealing with a PIL filed seeking a writ of Quo-warranto alleging appointment of private respondent therein being made without following prescribed procedure and the same is de-hors the recruitment rules. The Division Bench held as under:-

          "36. It was then argued on behalf of the respondents that the appointment letter issued to the respondent No. 1, was in the name of the Governor. The Cabinet having approved the proposal of appointment of respondent No. 1, and the Governor having authorised issuance of appointment letter to respondent No. 1, no fault can be found with that appointment. This, to say the least, is an argument of desperation. The people's representatives, no doubt are law makers but are obliged to follow the prescribed procedure in decision making to uphold the Rule of law. It is well established position by now and for that matter, it was so in vogue in 1995, that when the Rules provide for the procedure to be followed for appointment on any public post(s), it must be strictly followed. Any appointment made de hors the mandate of the prescribed rules, must be treated as non-est; having been made without authority of law and thus, amenable to quashment by issuance of a writ of quo warranto."

          Similar is the case in hand where the specific procedure prescribed for appointment of Assistant Warden in the Hostel is not followed. Therefore, the petitioners' appointment is to be treated as nonest since inception. The violation of principles of natural, which is the main thrust of arguments of petitioners may not vitiate the impugned order, when apparently, their appointments are found to have been made by an incompetent authority and without following prescribed procedure.

19. The learned counsels appearing for petitioners in other cases have adopted the arguments raised by Shri MPS Raghuwanshi, Senior Advocate and thus they are also sailing in the same boat.

20. It is also seen that vide circular, dated 21/06/2021 (Annexure R/6), the respondents have framed a new policy whereunder only the Assistant Teacher/Madhyamik Shikshak only is to be posted as Assistant Warden in KGB Hostels. Thus, no fruitful purpose would be served by remitting the matter to the respondents for consideration of petitioners' candidature for appointment as per procedure prescribed.

21. Consequently, the finding that the appointment of the petitioners is de-hors the procedure prescribed and is thus, illegal, cannot be said to the perverse on the face of the records. Consequently, the termination of the petitioners' service by the impugned order dated 01/02/2022 (Annexure- P/1) is found to be just and proper and the same is, accordingly, upheld. These petitions fails and are, hereby, dismissed.