Madhya Pradesh High Court
Satyanarayan Sharma vs The State Of Madhya Pradesh on 20 March, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
NEUTRAL CITATION NO. 2025:MPHC-JBP:16116
1 WP-7348-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 20th OF MARCH, 2025
WRIT PETITION No. 7348 of 2012
SATYANARAYAN SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sanjay Agrawal- Senior Advocate assisted by Shri Arpit Agrawal - Advocate
for the petitioner.
Smt. Shraddha Tiwari - Government Advocate for the respondents-State.
Shri Manoj Sharma - Senior Advocate assisted by Shri Prajas Bhatti - Advocate for
the respondent No.2.
ORDER
In this petition, the order dated 20.02.2012 (Annexure P/1) is under
challenge whereby various appointments of the petitioner and promotions
granted to him from time to time from the post of Lower Division Clerk to
the post of Additional Secretary, Vidhan Sabha, Madhya Pradesh and also
appointments made in various other departments have been declared void
and illegal and cancelled.
2. During the course of argument, it is pointed out by Shri Agrawal that the
competent authority in a proceeding of review exercising power under Rule
29 of the Madhya Pradesh Civil Services (Classification, Control and
Appeal) Rules, 1966 (For brevity ‘Rules, 1966’) has passed an order on
03.10.2023 recalling the order dated 20.02.2012 and directing reinstatement
of the petitioner, but that order is not being given effect.
3 . In compliance to the direction issued by this Court on 24.02.2025, the
respondent No. 2 has produced the order dated 03.10.2023 alongwith a
covering memo dated 11.03.2025.
4. Shri Agrawal has submitted that although the order dated 03.10.2023 has
not been given effect but, nothing remains to be adjudicated further in the
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
Signing time: 03-04-2025
19:02:50
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present case and the authority is under obligation to issue a consequential
order giving effect to the order dated 03.10.2023. He has submitted that if the
authority is sitting tight over the said order exercising its statutory power and
not issuing any consequential order then the order dated 03.10.2023 can be
termed to be an order passed by the authority as the same is in public domain
and therefore, implementation of the said order has to be made by the
authority and consequential order is required to be issued.
5 . Shri Sharma has opposed the submission made by Shri Agrawal and
submitted that in the facts and circumstances of the present case, the order
dated 03.10.2023 is nothing but a note-sheet and it cannot be termed as an
order and since it has been passed in a proceeding, it cannot be entertained
by the authority exercising power of review provided under Rule 29 of the
Rules, 1966. He has submitted that since an appeal had also been filed at the
relevant point of time challenging the impugned order, therefore, power of
review could not have been exercised by the authority as per the provisions
of Rule 29 of the Rules, 1966. He has also submitted that the said power
cannot be exercised beyond the period of six months. According to him,
when the order itself is void ab initio and has never been given effect and has
not been brought in public domain, the same cannot be compelled to be
implemented. The authority is free to take decision and the said order can
also be recalled by the authority because, according to him, the order is void
ab initio.
6 . I have heard the rival submission of the learned counsel for the parties
and also perused the record.
7 . As per the facts involved in the case, the order dated 20.02.2012
(Annexure P/1) passed by the Speaker of Madhya Pradesh Vidhan Sabha is
under challenge in this petition.
8 . The validity of the impugned order has been assailed whereby the
appointments of the petitioner from the post of Lower Division Clerk till
Additional Secretary have been found to be illegal and contrary to rules and
consequently the said orders have been set aside and declared void.
9 . Reply and rejoinder have been filed by the parties. However, in the
meantime, an application vide IA No. 946/2025 has been filed by the
counsel for the petitioner seeking disposal of the writ petition taking note of
the subsequent event because an order has been passed on 03.10.2023 by the
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
Signing time: 03-04-2025
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competent authority in exercise of power of review whereby the earlier order
dated 20.02.2012-Annexure A/1 has been recalled and set aside directing that
the petitioner be reinstated in service on the post of Additional Secretary,
Madhya Pradesh Vidhan Sabha applying the principle of ‘no work no pay’
and during the period when he remained out from work, he will not claim
any salary and allowances etc. but that period shall be counted for the
pensionary purpose.
10. Although respondents have denied the submission made by the learned
counsel for the petitioner and submitted that the order dated 03.10.2023
cannot be considered to be an order, but it is only a note-sheet and was never
implemented, not issued and communicated to the petitioner, therefore, it
does not carry any right in favour of the petitioner and it is only a piece of
paper.
1 1 . Shri Sharma has also submitted that the power of review has been
exercised by the authority and passed the order on 03.10.2023 but the same is
v o i d ab initio for the reason that it has been passed by the authority
exercising the power of review during pendency of appeal filed against the
order passed by the disciplinary authority and as such power of review could
not have been exercised under Rule 29 of the Rules, 1966. He has also
submitted that the said order is also illegal because power of review could
have been exercised within a period of six months from the date of passing
the impugned order, but not thereafter. Here in this case, according to Shri
Sharma, the power of review has been exercised by the authority beyond the
period of six months and therefore, no benefit of the order dated 03.10.2023
can be granted to the petitioner because the order itself is void ab initio.
12. Shri Agrawal, in rebuttal, has submitted that the order dated 03.10.2023
cannot be considered to be a note-sheet because it is an order passed by the
statutory authority in a quasi-judicial proceeding and his competence has not
been questioned by the respondents and the same authority, at this stage,
cannot deny the implementation of the order saying that the order is illegal
and void.
1 3 . After hearing the submission made by the learned counsel for the
parties, the only question emerges to be adjudicated is as to whether the
order passed by the authority on 03.10.2023 exercising the power of review
can be considered to be a note-sheet and the same cannot be implemented
because the authority has exercised the power of review illegally, which
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
Signing time: 03-04-2025
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NEUTRAL CITATION NO. 2025:MPHC-JBP:16116
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could not have been exercised according to the respondents?
14. Looking to the fact situation of the case at hand, undisputably the order
passed by the authority and its competence has not been assailed by the
respondents. The power of review can be exercised by the authority as per
Rule 29 of the Rules, 1966. Thus, the legality of the order cannot be
scrutinized by this Court because that order is not under challenge in the
present proceeding and petitioner is seeking implementation of the said
order, which was not disclosed and the authority even after passing the order
is sitting tight over the same, but, in pursuance to the information that came
to the knowledge of the petitioner, he applied for a copy of the said order
under the provisions of Right to Information Act and then in pursuance to the
direction of the Court, the said order has been produced before the Court.
Undoubtedly, the said order, whether legal or illegal, cannot be tested by this
Court because that order still exists and, according to the respondents, the
same is illegal and void and can be withdrawn by the authority or it can be
cancelled, but, nothing has been done and the authority with the same
competence is submitting that the said order cannot be implemented. In my
opinion, the order has been passed by the statutory authority exercising
power of review in a statutory proceeding and despite the fact that the order
is in favour of the petitioner, it has not been implemented and not
communicated to him. It cannot be considered to be a note-sheet because it
was not an internal matter of the Government and as such the said order
having no legal sanctity. If it has been passed by the competent authority in a
statutory proceeding, it has to be implemented. I can understand that the
order which is passed against a person had to be communicated and if not
communicated, the same cannot be given effect, but, here in the case at Bar,
the order has been passed in favour of the petitioner, but that has not been
communicated and as such it was not required to be communicate because it
does not affect the right of the petitioner, although it was in his favour and
the authority had to implement the same. The said order still exists and as
such it cannot be considered to be a note-sheet and not giving effect to the
said order is also not proper. It otherwise also cannot be considered to be a
note-sheet because it is not an administrative action or correspondence made
between the authorities of the Government, but it is an order passed in a
quasi-judicial proceeding exercising power of review setting aside earlier
order of cancellation of appointments of the petitioner and as such, in my
opinion, it can be given effect.
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
Signing time: 03-04-2025
19:02:50
NEUTRAL CITATION NO. 2025:MPHC-JBP:16116
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1 5 . The Supreme Court in Pimpri Chinchwad New Township
Development Authority vs. Vishnudev Cooperative Housing Society and
others reported in (2018) 8 SCC 215 dealing with the proceeding and noting
made in the government file asked as to why the same can be considered to
be a note-sheet and observed as under:
“35. The question is whether the order dated 10-6-2004 passed
by the then Revenue Minister directing release of the acquired
land in question has the attributes of an order within the meaning
of Section 48 of the Act or, in other words, whether the order in
question created any right in favour of the landowners so as to
enable them to claim mandamus for enforcement of such order
against the State.
36. Our answer to the question is “no”. It is for the reasons that :
first, a mere noting in the official files of the Government while
dealing with any matter pertaining to any person is essentially an
internal matter of the Government and carries with it no legal
sanctity; second, once the decision on such issue is taken and
approved by the competent authority empowered by the
Government in that behalf, it is required to be communicated to
the person concerned by the State Government. In other words,
so long as the decision based on such internal deliberation is not
approved and communicated by the competent authority as per
the procedure prescribed in that behalf to the person concerned,
such noting does not create any right in favour of the person
concerned nor it partake the nature of any legal order so as to
enable the person concerned to claim any benefit of any such
internal deliberation. Such noting(s) or/and deliberation(s) are
always capable of being changed or/and amended or/and
withdrawn by the competent authority.
37. Third, though Section 48 of the Act, in terms, does not
provide that release of the land from any acquisition proceedings
is required to be done by issuance of the notification by the State
but, in our view, having regard to the scheme of the Act, which
begins with the process of issuance of notification under Section
4 of the Act for acquisition of any land, the release of land from
such acquisition is complete only when a notification is issued
by the State in that behalf.
38. Indeed, the aforementioned issue remains no more res integra
and was decided by this Court in several decisions, such as State
of Punjab v. Sodhi Sukhdev Singh [State of Punjab v. Sodhi
Sukhdev Singh, AIR 1961 SC 493] , State of Bihar v. Kripalu
Shankar [State of Bihar v. Kripalu Shankar, (1987) 3 SCC 34 :
1987 SCC (Cri) 442] , Rajasthan Housing Board v. Shri
Kishan [Rajasthan Housing Board v. Shri Kishan, (1993) 2 SCC
84] , Sethi Auto Service Station v. DDA [Sethi Auto Service
Station v. DDA, (2009) 1 SCC 180] and Shanti Sports
Club v. Union of India [Shanti Sports Club v. Union of India,
(2009) 15 SCC 705 : (2009) 5 SCC (Civ) 707] .
39. In Shanti Sports [Shanti Sports Club v. Union of India,
(2009) 15 SCC 705 : (2009) 5 SCC (Civ) 707] a Bench of twoSignature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
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NEUTRAL CITATION NO. 2025:MPHC-JBP:161166 WP-7348-2012
Judges of this Court, speaking through Singhvi, J., took note of
all the previous case law on the subject noted above and held as
under : (SCC pp. 723, 734 and 726-27, paras 37, 39 & 43)
“37. … Although, the plain language of Section 48(1)
does not give any indication of the manner or mode in which
the power/discretion to withdraw from the acquisition of any
land is required to be exercised, having regard to the scheme
of Parts II and VII of the 1894 Act, which postulates
publication of notification under Section 4(1), declaration
under Section 6 and agreement under Section 42 in the
Official Gazette as a condition for valid acquisition of the
land for any public purpose or for a company, it is
reasonable to take the view that withdrawal from the
acquisition, which may adversely affect the public purpose
for which, or the company on whose behalf the acquisition is
proposed, can be done only by issuing a notification in the
Official Gazette.
***
39. The requirement of issuing a notification for exercise
of power under Section 48(1) of the Act to withdraw from
the acquisition of the land can also be inferred from the
judgments of this Court in Municipal Committee,
Bhatinda v. LAO [Municipal Committee, Bhatinda v. LAO,
(1993) 3 SCC 24] , U.P. State Sugar Corpn. Ltd. v. State of
U.P. [U.P. State Sugar Corpn. Ltd. v. State of U.P. , 1995
Supp (3) SCC 538] , State of Maharashtra v. Umashankar
Rajabhau [State of Maharashtra v. Umashankar Rajabhau,
(1996) 1 SCC 299] and State of T.N. v. L. Krishnan [State of
T.N. v. L. Krishnan, (1996) 7 SCC 450].
***
43. A noting recorded in the file is merely a noting
simpliciter and nothing more. It merely represents
expression of opinion by the particular individual. By no
stretch of imagination, such noting can be treated as a
decision of the Government. Even if the competent authority
records its opinion in the file on the merits of the matter
under consideration, the same cannot be termed as a decision
of the Government unless it is sanctified and acted upon by
issuing an order in accordance with Articles 77(1) and (2) or
Articles 166(1) and (2). The noting in the file or even a
decision gets culminated into an order affecting right of the
parties only when it is expressed in the name of the President
or the Governor, as the case may be, and authenticated in the
manner provided in Article 77(2) or Article 166(2). A noting
or even a decision recorded in the file can always be
reviewed/reversed/overruled or overturned and the court
cannot take cognizance of the earlier noting or decision for
exercise of the power of judicial review.”
1 6 . In view of the aforesaid observation of the Supreme Court, it is clear
that the noting in the file or even a decision gets culminated into an order
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
Signing time: 03-04-2025
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NEUTRAL CITATION NO. 2025:MPHC-JBP:16116
7 WP-7348-2012
affecting right of the party only when it is expressed in the name of the
President or the Governor, as the case may be, and authenticated in the
manner provided. The Supreme Court observed that a noting recorded in the
file can always be reviewed/reversed and overruled or overturned and the
court cannot take cognizance of the earlier noting or decision for exercise of
power of judicial review. However, the facts of the present case are contrast
from the facts of the case cited above for the reason that in the present case
the order has been passed by the competent authority and question of
reviewing or overturning the same does not arise. It is an order passed by the
competent authority in a statutory proceeding in favour of the petitioner and
there is no procedure prescribed that the said order is required to be
communicated and as such it has to be given effect and it is obligatory for
the authority after passing the order to give effect to the same.
1 7 . The Supreme Court in case of Municipal Corporation of Delhi Vs.
Qimat RaiGupta and others reported in (2007) 7 SCC 309 has observed as
under:-
“26. A distinction, thus, exists in the construction of the word
“made” depending upon the question as to whether the power
was required to be exercised within the period of limitation
prescribed therefor or in order to provide the person aggrieved to
avail remedies if he is aggrieved thereby or dissatisfied
therewith. Ordinarily, the words “given” and “made” carry the
same meaning.
27. An order passed by a competent authority dismissing a
government servant from services requires communication
thereof as has been held in State of Punjab v. Amar Singh
Harika [AIR 1966 SC 1313] but an order placing a government
servant on suspension does not require communication of that
order. (See State of Punjab v. Khemi Ram [(1969) 3 SCC 28 :
AIR 1970 SC 214] .) What is, therefore, necessary to be borne in
mind is the knowledge leading to the making of the order. An
order ordinarily would be presumed to have been made when it is
signed. Once it is signed and an entry in that regard is made in
the requisite register kept and maintained in terms of the
provisions of a statute, the same cannot be changed or altered. It,
subject to the other provisions contained in the Act, attains
finality. Where, however, communication of an order is a
necessary ingredient for bringing an end result to a status or to
provide a person an opportunity to take recourse to law if he is
aggrieved thereby, the order is required to be communicated.
Emphasis supplied
28. The Division Bench of the High Court, in our opinion,
proceeded on a wrong premise insofar as it misconstrued and
misinterpreted the word “made” in the context of sub-section (4)
of Section 126 of the Act opining that the power can be misusedSignature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
Signing time: 03-04-2025
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NEUTRAL CITATION NO. 2025:MPHC-JBP:161168 WP-7348-2012
by the Commissioner. The Division Bench, with respect, failed
to notice that there exists a presumption that the official act is
presumed to have been done in regular course of business. There
also exists a presumption that a statutory functionary would act
honestly and bona fide.”
1 8 . In view of the above observation made by the Supreme Court, it is
clear that when any order is signed by the competent authority that has
become an order and it should be communicated, if it adversely affect the
right of the party. Here in this case, the order dated 03.10.2023 does not
adversely affect the right of the petitioner because it is passed in his favour
and as such it cannot be said that if the said order is not communicated to the
petitioner, it cannot be considered to be an order. It is also germane to
mention here that even after passing the order, it was not disclosed by the
authority and the petitioner after coming to know about the said order asked
the Court to direct the respondents to produce the said order and that order
has been produced before the Court. This shows that the authority has not
acted honestly and bonafidely. In my opinion, the note sheet in a
Government file considering deliberation between the authorities cannot be
termed as an order, unless it is issued in the name of the competent authority,
because the basic object is that the said note-sheet, if it is not approved by the
competent authority, can be reversed or overturned, but, in the instant case,
the order dated 03.10.2023 is not being assailed on the ground of
competency of the authority, but it is being opposed by the learned counsel
appearing on behalf of the authority, which has passed the order, saying that
the predecessor has passed the order contrary to law, but that order even in
the knowledge of the authority has not been recalled, set aside or modified. It
is an order passed in a statutory proceeding but not disclosed. The
communication is not very material for the reason that the basic object of
communicating the order is to give an opportunity to the person concerned to
challenge the same. Although in the present case the petitioner was never
informed about the said order, but somehow he came to know about the
order passed in his favour by the competent authority and that order still
exists and w a s brought to the notice of the Court and, therefore, in the
existing circumstances, the order cannot be considered to be a note-sheet
because it is signed by the competent authority and no further approval is
required by any other authority and, in the final analysis, it is an order, which
has to be implemented.
1 9 . Although Shri Sharma appearing for the respondents is criticizing the
order dated 03.10.2023, but, in this petition, I am not required to consider the
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
Signing time: 03-04-2025
19:02:50
NEUTRAL CITATION NO. 2025:MPHC-JBP:16116
9 WP-7348-2012
validity of the said order because it has not been assailed before this Court
and on the contrary, petitioner is seeking implementation of the said order.
Shri Sharma is also appearing for the authority, who has passed the order on
03.10.2023, but that was not disclosed and implemented. Since that order still
exists, neither cancelled nor implemented, therefore, the submission made by
Shri Sharma, in my opinion, cannot be the foundation of holding that the
order dated 03.10.2023 is not proper.
2 0 . In the end, this petition is disposed of with a direction to the
respondents that the order dated 03.10.2023 passed by the competent
authority in exercise of power of review, which has been produced before
this Court, be implemented and the petitioner be reinstated in service within
a period of 30 days from submitting copy of this order and the benefits, as
have been directed to be provided in the order, be also provided to him.
21. No order as to costs.
(SANJAY DWIVEDI)
JUDGE
RAGHVENDRA
Signature Not Verified
Signed by: RAGHVENDRA
SHARAN SHUKLA
Signing time: 03-04-2025
19:02:50
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