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Madhya Pradesh High Court · body

2002 DIGILAW 136 (MP)

Vinod Kumar Pandey v. Collector, Shahdol

2002-02-06

A.K.MISHRA

body2002
ORDER 1. These writ petitions are filed against the order passed by the Collector, District Shahdol. The Collector quashed the selection list of Shiksha Karmis Grade-III prepared by the Janpad Panchayat, Budhar. The order passed by the Collector was challenged before the Commissioner in revision. The Commissioner, Rewa Division, Rewa partially modified the order passed by the Collector on 9.3.1999 with respect to Shakuntala Singh and Vandana Singh. This order of Commissioner is also challenged in WP No. 6821/2000 and WP No. 6698/2000. 2. An advertisement was issued on 6.6.1998. Separate applications were invited for the posts of Shiksha Karmis 221 posts falling under the Education Department, 41 posts of Tribal Welfare Department were advertised. 2 posts of Science Teacher in Tribal Welfare Department were advertised and 58 posts for Rajeev Gandhi Shiksha Mission were advertised. It was clearly stated in the advertisement that the applicants had to submit separate applications for the concerned posts of each and every department. Separate fee was required to be paid. Petitioners submit that some of them applied for 3 departments, whereas some of them applied for post of one or two departments only. Separate interviews were conducted department-wise on different dates. Three separate/different departments conducted interviews on three different dates. Advertisement P-4 also provided for bifurcation and reservation department-wise. 3. The appointment of Shiksha Karmi Grade-III is regulated by the M.P. Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997. Rule 5(7) provides method of preparation of select list. Three times candidates as compared to the number of vacancy category-wise shall be called for interviews. 60% marks were reserved under the rules prevalent at the relevant time for the marks obtained in qualifying examination specified in Schedule-II. 25% marks for teaching experience and 15% marks for oral test. Sub-rule (9) of rule 5 has been amended on 7.7.1999. 4. The petitioners in WP No. 6821/2000 submit that initially after the interview three different selection lists were prepared and published by Education Department, Tribal Department and Rajeev Gandhi Shiksha Mission. The appointment orders were issued separately by each of the department. Different petitioners were appointed in their respective departments. 5. An appeal was filed before the Collector, district Shahdol by Smt. Phoolwati Patel and another pointing out that provision of section 4 of M.P. Public Service (Reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, was not followed. Different petitioners were appointed in their respective departments. 5. An appeal was filed before the Collector, district Shahdol by Smt. Phoolwati Patel and another pointing out that provision of section 4 of M.P. Public Service (Reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, was not followed. The Collector as per order dated 9.3.1999 allowed the appeal and quashed the selection list and directed preparation of fresh selection list and waiting list for the purpose of next academic session on the grounds that: (1) Provision of reservation under M.P. Public Service (Reservation for SC, ST and OBC Act, 1994 was not followed. (2) Relatives of some of the candidates participated in the selection process. (3) Sushama Singh and Jyoti Khare were granted 10 marks each on the basis of their being green card holder, which was not provided under the rules. (4) No waiting list was prepared. Thus, the Collector concluded that after following the provision of Reservation Act, 1994, a fresh selection list should be prepared. No mark should be added on account of a candidate being green card holder. With respect to the appointment of the relatives of the members of the selection committee a separate order was passed by the Collector in Case No. 22/B-121/98-99. The direction was to be effective from the next academic session. These both orders were challenged before the Commissioner. The Commissioner as per order dated 29.9.2000 upheld the order of the Collector passed in Case No. 15/B-121/98-99 as contained in Annexure P-1. However, 'the order passed by the Collector in Case No. 22/B-121/98-99 was set aside with respect to Smt. Vandana Singh and Smt. Shakuntala Singh and marks obtained by them in the interviews were directed to be added while preparing fresh selection list. 6. The petitioners in WP No. 6821/2000 submit that pursuant to the order P-1 passed by the Collector, a combined final select list of all the three departments was prepared, which was not permissible as selections were separately conducted. The incumbents were separately interviewed for different departments i.e. the Education Department, Tribal Department and Rajeev Gandhi Shiksha Mission. Once the selections were held by separately inviting the applications department-wise, separate final select list should have been prepared. There was absolutely no justification with the Chief Executive Officer to combine all the three departments and prepare a single combined select list. Once the selections were held by separately inviting the applications department-wise, separate final select list should have been prepared. There was absolutely no justification with the Chief Executive Officer to combine all the three departments and prepare a single combined select list. Thus, the termination of the petitioners made on the basis of preparation of such a faulty list is bad in law. The action is unconstitutional in violation of Articles 14 and 16 and the order of termination dated 29.4.1999 issued on the basis of the faulty preparation of select list and implementation of the order passed by the Collector be set aside. 7. The petitioners in WP No. 6821/2000 joined in September 1998, on different posts. Petitioners Sanjiv Kumar Tiwari, Deep Narayan Pandey and Brajendra Nath Pandey in Education Department; petitioner Dhirendra Narayan Chaturvedi in Tribal Department and petitioners. Indra Pal Pandey, Smt. Kalpana Nigam in Rajeev Gandhi Shiksha Mission and petitioner Janaradan Prasad Pandey in Education Department. The selection list and waiting list prepared by the Chief Executive Officer pursuant to the order passed by the Collector are Annexure P-18 and Annexure P-19. 8. Petitioners in WP No. 6821/2000 in para 5.9 of the petition further submit that the Chief Executive Officer further committed gross error in appointing 23 Shiksha Karmis Grade-III, out of waiting list Annexure P-19, in which these persons were appointed wrongly in the Education Department, vacancies. arose on 30.3.1999; these 23 persons belonged to different departments and could not be appointed against the vacancies of Education Department, as some of persons included in this waiting list did not even apply to the posts of the Education Department and were not selected for Education Department and were illegally appointed in Education Department as Shiksha Karmi Grade-III. Department-wise waiting list should have been prepared, of the candidates who had applied for the concerned department. Aggrieved by the appointments of 23 candidates, whose names appeared in waiting list, petitioners No.2 and 4 in WP No. 6821/2000 preferred an appeal before the Collector vide appeal No. 25/B-121/99-2000 which was decided by the Collector, Shahdol on 26.10.1999, by which the appointments of 25 Shiksha Karmis Grade-III were cancelled. Revision was preferred before the Commissioner. The Commissioner had set aside the order of the Collector passed on 26.10.1999 in appeal No. 25/B-121/992000. Revision was preferred before the Commissioner. The Commissioner had set aside the order of the Collector passed on 26.10.1999 in appeal No. 25/B-121/992000. The appeal against the order was decided by the common order passed by the Commissioner on 29.10.2000 Annexure P-3 in WP No. 6821/2000 by which the revisions against the order dated 9.3.1999 were also heard and decided. 9. The respondent No. 1-Janpad Panchayat, Budhar in its return in WP No. 6821/2000 contends that the order passed by the Collector on 9.3.1999 was followed by preparing fresh selection list providing for reservation. The initial selection list did not take into consideration provision of reservation and impermissible benefit was extended to green card holders: The persons who were appointed in 1998 were continued in the academic session, 1998-99. The order of the Collector was affirmed in revision by the Commissioner except partial modification was made. The orders passed by the Collector and the Commissioner are proper. Since, the entire selection list was cancelled, it was not necessary to hear each and every person. Though the respondent No. 1 had filed separate return supported by an affidavit of Udayraj Singh, Chief Executive Officer, Janpad Panchayat, Budhar, through Shri Riaz Mohd., Advocate, yet another return has been filed on behalf of the respondents No. 1 to 3 and that is to say, Janpad Panchayat, Collector, district Shahdol and the Commissioner, Rewa Division, Rewa. It is contended in the return that the Janpad Panchayat, Budhar had not followed the reservation as per the Reservation Act, 1994. It is contended that as per the recruitment rules while making the appointment, the select list of different categories was required to be amalgamated and thereafter based on the order of merit first, the posts of general category were required to be filled. The candidates belonging to reserved category who on their merit were liable to secure appointment against the general category ought to have been given appointment on the post meant for the general category and they should not have been appointed against the reserved category. Some of the members of the selection committee were related to the candidates who appeared for the selection. Two candidates namely Sushma Singh and Jyoti Khare were given 10 marks each on the ground that they were holders of green cards, whereas no such marks were permissible to be given. Some of the members of the selection committee were related to the candidates who appeared for the selection. Two candidates namely Sushma Singh and Jyoti Khare were given 10 marks each on the ground that they were holders of green cards, whereas no such marks were permissible to be given. The selection proceedings were saved and only fresh selection lists were directed to be prepared, which shall be valid for the next academic session i.e. academic session 1999-2000. It was directed by the Collector that while making the selection list, the candidates whose relatives were sitting in the selection committee shall be given zero marks for the interview. Thus, respondent contends that the order passed by the Collector is perfectly legal. The marks obtained by the petitioners were less. On preparation of the fresh list the last candidate belonging to the general category who was appointed had obtained 63% marks, whereas the marks obtained by the petitioner were less. 10. In the rejoinder, the petitioners reiterated that the return filed by the respondents is silent on the point how the candidates of three different departments were amalgamated and common selection list was prepared. It is reiterated that the persons who did not apply in education department were appointed and vice-versa. 11. In WP No. 6698/2000, the orders passed by the Collector and the Commissioner are challenged. 12. In WP No. 1509/1999, the order passed by the Collector is challenged. 13. Learned counsel appearing for the petitioners submits that the initial order passed by the Collector interfering with the selection was bad in law. It is also contended in the alternative that even if the order of Collector is allowed to stand, the joint selection list of three departments which was prepared pursuant to the order passed by the Collector was totally illegal. It was not the direction of the Collector to amalgamate the list of different departments. The separate lists should have been prepared as separate interviews were conducted and each of the persons had not applied to each of the three departments. Persons who did not apply for Education Department, were appointed in Education Department, which was clearly an illegal and impermissible act. It is further contended that the petitioners should have been heard before passing the order by the Collector. Their appointments were wrongly set aside. 14. Persons who did not apply for Education Department, were appointed in Education Department, which was clearly an illegal and impermissible act. It is further contended that the petitioners should have been heard before passing the order by the Collector. Their appointments were wrongly set aside. 14. Learned counsel for the respondents submits that the orders passed by the Collector and the Commissioner are proper. A fresh selection list was rightly prepared. No illegality has been committed. Petitioners are not required to be heard personally as the entire selection list was directed to be prepared afresh saving the selection procedure. 15. Before considering the rival submissions, it may be stated that the entire selection procedure inviting application, conduct of interview has not been assailed by either side in the instant writ petitions. The arguments have been advanced as to the validity of the orders passed by the Collector and the Commissioner and the fresh selection list prepared pursuant to the direction issued by the Collector under the impugned order. 16. First, the validity of the order passed by the Collector on 9.3.1999 in Case No. 15/B-121/98-99 Annexure P-1, which was affirmed by the Commissioner, be examined. It was the conceded position before the Collector that the provision of reservation as prescribed by the M.P. Lok Sewa (SC, ST and OBC) Reservation Act, 1994 was not followed while preparing the selection list. 17. Direction was to prepare fresh selection list following the provision of Reservation Act, 1994 and the appointments made in 1998 were ordered to be continued in that session and the direction to prepare fresh selection list saving the selection procedure including the interview except in case of 6-7 candidates. It cannot be said that the direction issued by the Collector for preparation of fresh selection list following the provision of Reservation Act, 1994 was unjustified in any manner. Further reasoning employed by the Collector that waiting list was not prepared, could not be made a ground to• quash the selection list. But, by that the order passed by the Collector does not stand vitiated as the main selection list was required to be prepared following the provision of Reservation Act, 1994. 18. Further reasoning employed by the Collector that waiting list was not prepared, could not be made a ground to• quash the selection list. But, by that the order passed by the Collector does not stand vitiated as the main selection list was required to be prepared following the provision of Reservation Act, 1994. 18. Coming to the second submission that pursuant to the order passed by the Collector on 9.3.1999, whether joint merit list of all the three departments could have been prepared and appointments could be made out of merit list and waiting list so prepared? It has not been denied in the two returns filed in WP No. 6821/2000 by the Janpad Panchayat and the Collector and Commissioner that the joint amalgamated merit list of all the departments was prepared. This is the main basis on which WP No. 6821/2000 was preferred. This important aspect has not been traversed in the return filed by the respondents No.1 to 3. It was reiterated in the rejoinder filed by the petitioner that the respondents are unable to deny the fact that they had not prepared the department-wise merit list. The only submission raised in reply is that the joint merit list of all the categories was required to be prepared to find out the merit list of general category, but, crucial question is whether for the vacancies of Education Department, Tribal Department and Rajeev Gandhi Shiksha Mission could a joint/amalgamated merit list be prepared? 19. It is not disputed that separate applications were invited as per the advertisement issued in the year 1998. 221 posts were advertised of Education Department and of Tribal Department 83 vacancies were advertised and of Rajeev Gandhi Shiksha Mission 58 vacancies were advertised by the Janpad Panchayat, Budhar, district Shahdol. The advertisement was for filling the vacancies of Shiksha Karmi Grade-III. It was issued pursuant to three different directions of Dy. Director of Education, District Shahdol dated 1.6.1998, Assistant Commissioner, Tribal Development, Shahdol's letter dated 13.5.1998 and District Project Director of Rajeev Gandhi Shiksha Mission, Shahdol's letter dated 1.6.1998. As per advertisement, separate applications were required to be submitted for each departments i.e. for Education Department, Tribal Department and Rajeev Gandhi Shiksha Mission. Separate application fee was required to be paid as per the condition of advertisement. As per advertisement, separate applications were required to be submitted for each departments i.e. for Education Department, Tribal Department and Rajeev Gandhi Shiksha Mission. Separate application fee was required to be paid as per the condition of advertisement. It is also not disputed that the petitioners in WP No. 6821/2000 some petitioners applied for 3, some applied for two or one. If common merit list was to be prepared, then separate application could not be invited. Separate interviews could not be conducted. Separate fee could not be charged. It is gross infringement of Articles 14 and 16. 20. Resultantly, the selection list and the waiting list P-18 and P-19 in WP No. 6821/2000 are thus liable to be quashed. The orders passed by the Collector as modified by the Commissioner are upheld. The selection list and the waiting list Annexure P-18 and Annexure P-19, pursuant to the impugned order dated 9.3.1999 passed by the Collector are quashed. Preparation of the fresh selection list is directed to be made forthwith, separate selection list department-wise in (1) Education Department, (2) Tribal Department and (3) Rajeev Gandhi Shiksha Mission and waiting list are directed to be prepared and in case it is found that any of the persons who were working were wrongly thrown out of the service on the basis of preparation of the amalgamated selection list, shall be entitled to backwages. Fresh selection list is directed to be prepared within 15 days from today in the manner aforesaid till then, present arrangement to continue. Costs on parties.