Research › Search › Judgment

Chhattisgarh High Court · body

2002 DIGILAW 84 (CHH)

Jaya Chandrakar v. Distt. Panchayat

2002-09-13

FAKHRUDDIN

body2002
ORDER Fakhruddin, J. 1. Being aggrieved against the judgment and decree dated 19-12-2000 passed by Vth Additional District Judge, Durg, in Civil Appeal No. 14-A of 1999 arising out of Civil Suit No. 7-A/98 decided by the 1st Civil Judge, Class II, Durg, the present appellant has filed this appeal under Section 100 of the Code of Civil Procedure. 2. Briefly stated facts are that the appellant filed a suit for declaration and permanent injunction on the ground that an advertisement was published for filling up the post of Shiksha Karmi, Class-I, in a Newspaper. The said post has been reserved for the candidates of OBC and the present appellant had applied for the same as one of the candidates and faced the test and interview. According to the appellant, she had secured higher marks in the merit list, however, respondent Nos. 3 and 4 who secured lesser marks than the appellant were appointed whereas the appellant was not selected and she was shown in the OBC waiting list at serial No. 1. It is also contended that the roster of reservation was not properly prepared. 3. The applicant raising all such grounds has filed civil suit for declaring the appellant as selected for the Post of Shiksha Karmi, Class-I (Chemistry) including pay, seniority and other benefits w.e.f. 17-7-1998. Learned Counsel for respondent Nos. 1, 2 and 5 has raised objection that the dispute is regarding service and its appointments and alternative remedy of appeal against the impugned action is available which is more effective and efficacious. 4. Both the Courts below, having considered the facts and circumstances of the case, material on record and after hearing Counsel for the parties, rejected the relief sought for on the ground that the appellant has not availed of the alternative remedy of appeal under the provisions of Rule 12 of M.P. Panchayat Shiksha Karmi (Recruitment & Conditions of Service) Rules, 1997 and dismissed the suit/appeal. Hence this appeal. 5. By order dated 4-12-2001, this appeal has been admitted on the following substantial questions of law :-- "(1) Whether the Courts below were justified in dismissing the claim of the appellant on the ground of alternative remedy alleged to be available and denial of relief on that ground is sustainable in law ? Hence this appeal. 5. By order dated 4-12-2001, this appeal has been admitted on the following substantial questions of law :-- "(1) Whether the Courts below were justified in dismissing the claim of the appellant on the ground of alternative remedy alleged to be available and denial of relief on that ground is sustainable in law ? (2) Whether the Courts below under the facts and circumstances of the case were justified in holding that the provisions have been properly construed and the order passed is sustainable in law ?" 6. Shri H.B. Agrawal, Counsel for the appellant submits that availability of alternative remedy is not a bar and the Courts below ought not to have rejected the suit on this ground alone. It is stated that if the appeal is filed, the State may take plea of limitation. 7. On the other hand, learned Counsel for the State submits that the appeal would lie before the Commissioner under Rule 12 of the M.P. Shiksha Karmis (Recruitment & Conditions of Service) Rules, 1997, which is relevant here and quoted below :-- "12. Appeal.-- Appeal against the order passed under these rules may be made as per the provisions of the Adhiniyam." 8. It is submitted that under the said Rule, the forum of appeal is available which is speedy, more effective and efficacious alternative remedy and the State has come out with the plea that it would like the appellate authority to decide the appeal on merits and not on technical grounds of limitation or otherwise. Counsel for the State further submitted that since it is the matter of Janpad Panchayat, appeal lies to the Commissioner even under the provisions of M.P. Panchayats (Appeal and Revision) Rules, 1995. 9. Having thus heard and considered the facts and circumstances of the case, material on record and in view of the stand taken by the State regarding availability of remedy of appeal and further that the appellate authority, i.e., Commissioner is said to be functioning day to day effectively and efficaciously the first question is decided accordingly. 9. Having thus heard and considered the facts and circumstances of the case, material on record and in view of the stand taken by the State regarding availability of remedy of appeal and further that the appellate authority, i.e., Commissioner is said to be functioning day to day effectively and efficaciously the first question is decided accordingly. It is directed that appeal shall be filed before the competent authority, the Commissioner, The appellant is given liberty to file the appeal before the appellate authority which is said to be the Commissioner within 15 days along with the certified copy of this order and in case such an appeal is filed, the Commissioner shall decide the same on merits preferably within a period of two months from the date of filing of the appeal in accordance with law. If any adverse order is passed, the aggrieved party is entitled to the remedy provided under the Act and may approach this Court under Article 226/227 of Constitution of India. In that view of the matter, Counsel for the parties submit that the second question is not required to be decided. 10. Counsel for the parties pray for a fixed date to appear before the Commissioner. As prayed for, parties shall appear before the Commissioner on 30-9-2002.