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Madhya Pradesh High Court · body

2005 DIGILAW 1217 (MP)

AKHILESH KUMAR METHIL v. STATE OF MADHYA PRADESH

2005-11-30

RAJENDRA MENON

body2005
Judgment ( 1. ) AS common questions are involved in all these four petitions they are heard and disposed of by this common order. ( 2. ) MUNICIPAL Council, Guna initiated certain proceedings by issuing advertisement in the year 2001 for appointment of Samvida Shala Shikshak varg I, II and III. Appointments were to be made in accordance with the provisions of M. P. Municipal Council Samvida Shala Shikshak (Recruitment and Conditions of Service) Rules, 2001, herein after referred to as the service rules. Selection process was conducted and appointment orders were issued to the selected candidates in August 2001. The selected candidates included the petitioners who have filed the present petitions. Being aggrieved by the process of selection some of the unsuccessful candidates who are the private respondents in these petitions filed appeals before the Collector, Guna in accordance with the statutory provisions. Collector, Guna in accordance with the statutory provisions. Collector vide order dated 30-3-2002 allowed the appeals, quashed the orders of appointment and issued a direction for holding fresh selection. ( 3. ) ORDER dated 30-3-2002 passed by the Collector was challenged by many of the selected candidates including all these petitioners by filing writ petition W. P. No. 639/02, W. P. No. 640/02, W. P. No. 641/02, W. P. No. 642/02, w. P. No. 643/02 and W. P. No. 662/02. All these petitions were heard and decided by common order passed on 4-9-2002. Copy of the said order is filed as annexure P/5 in the record of W. P. 639/02. After going through the rival contentions that were made in the earlier petitions this Court found that the collector has decided the appeals filed before him without issuing proper notice to the selected candidates like the petitioners, has based his finding on certain report submitted by Sub Divisional Officer. The report of the S. D. O. was never given to the selected candidates, the Sub Divisional Officer has not heard the selected candidates and as the report was neither filed in the proceedings before this Court also, the order passed by the Collector was quashed finding it to be contrary to the principles of natural justice and all the petitions were allowed and the matter was remanded back to the Collector for deciding the appeal afresh. ( 4. ( 4. ) DIRECTIONS issued by this Court in the earlier petitions are contained in para 18 of the order dt. 4-9-02 passed by this Court which reads as under:- (i) the Collector or the appellate authority shall decide the appeal afresh in accordance with law; (ii) the petitioners in all the petitions, the respondents who have preferred the appeals before the Collector and the Municipal Council shall appear before the Collector or the appellate authority on 30-9-02 alongwith a certified copy of this order; (iii) the Collector or the appellate authority shall proceed to hear the appeal on merits and decide it in accordance with law within a period of three months thereafter; (iv) it is made clear that it would not be necessary for the collector or the appellate authority to issue any further notice either to the petitioners or the respondents. ( 5. ) AFTER remand of the matter by this Court Collector has heard all concerned and now by impugned order passed on 17-3-03 challenged in these petitions found that the Selection Committee has not been properly constituted and, therefore, has quashed the entire selection. ( 6. ) SHRI P. N. Gupta, learned Counsel appearing for the petitioners taking me through the earlier order passed by this Court in W. P. 639/02 and other petitions argued that again Collector has committed the same mistake. Enquiry report of the S. D. O. has not been supplied and without going through the records properly order has been passed. It is argued by him that the order passed committing the same mistakes is unsustainable. Apart from the aforesaid it was submitted by him that except for contending that the Selection Committee is not properly constituted no further allegation of bias or prejudice in the matter of selection is pointed out. Shri P. N. Gupta, learned Counsel argued that until and unless infirmity in the process of selection is established or bias, malafides or prejudice of the members of the Selection Committee is pleaded or proved interference in the matter merely on the ground of some defect in constitution of the Selection Committee was not warranted. He submitted that the order passed by the Collector ignoring the aforesaid principles is clearly unsustainable. He submitted that the order passed by the Collector ignoring the aforesaid principles is clearly unsustainable. That apart inviting my attention to the provisions of Section 71 of m. P. Municipalities Act, 1961 Shri P. N. Gupta submitted that as the Selection committee was constituted by the Education Committee established in accordance with Section 71, there is no illegality in the matter. He, therefore, argued that order passed by the Collector is unsustainable. ( 7. ) SHRI M. P. S. Raghuvanshi, learned Counsel representing some of the petitioners added to the submissions made by Shri P. N. Gupta and it was submitted by him that respondents have not demonstrated as to how the selection has adversely effected them only because of nomination of two experts in the subject by the Chief Municipal Officer or the President of the Council. It was argued by Shri Raghuvanshi that in the absence of any adverse effect on the selection process the entire selection could not be cancelled. That apart placing reliance on the judgment of Supreme Court in the case Chandra Prakash Tiwari and others Vs. Shakuntala Devi, (2002) 6 SCC 127 and S. R. Jain Vs. University of sugar and others, 1997 (2) JLJ 115 , Shri Raghuvanshi argued that the objectors who had filed the appeal having participated in the selection process were estopped from challenging the entire selection after the selection process was over and they were unsuccessful. Shri Anil Sharma, learned Counsel adopted the arguments advanced by Shri P. N. Gupta and Shri Raghuvanshi. ( 8. ) EVEN though Shri S. K. Jain, learned Counsel representing the municipal Council tried to support the selection process initiated by the municipal Council Smt. Ami Prabal, learned Govt. Advocate inviting my attention to the recruitment rules argued that once the constitution of the selection Committee is found to be contrary to the statutory provisions the entire selection stands vitiated and, therefore, the order passed by the Collector holding the selection to be vitiated does not call for any interference in the matter. ( 9. ) I have heard learned Counsel for the parties and perused the record. ( 10. ( 9. ) I have heard learned Counsel for the parties and perused the record. ( 10. ) EVEN though in the earlier round of litigation this Court had remanded the matter back to the Collector for consideration afresh in the earlier petition filed this Court interferred in the matter as action taken was without giving proper opportunity of hearing and submitting their cases before the Collector. On remand the order indicates that all concerned have been heard, objectors raised primarily three objections were raised in the matter of selection. First objection was that constitution of the selection committee is contrary to the provisions of Schedule II Column 6 and Column 6 (4) of the recruitment Rules and, therefore, the entire selection stands vitiated as the selection committee was not properly constituted in accordance with law. The second ground was that no expert in the subject of Urdu was called, on the contrary a Kazi was asked to appear in the selection process. The third objection raised was that there has been favourtism in the matter of awarding marks in interview. All these objections were considered by the Collector and the collector has quashed the selection on ground No. 1 itself pertaining to improper constitution of the selection committee. To arrive at the aforesaid finding Collector has taken note of the reply filed before him by the Chief municipal Officer of the Municipal Council and finding the same to be confirmed on the basis of the records of selection and the report of Sub divisional Officer interference in the matter is made. ( 11. ) SELECTION in the matter is governed by the statutory rules which are framed under Section 58 read with Section 433 of the M. P. Municipal corporation Act, 1956 and Section 95 read with Section 355 of the M. P. Municipalities Act, 1961. These rules are statutory in nature and are filed as annexure P/2 in W. P. No. 840/03. Rule 2-Ga of the said rule defines a Samiti to mean a Committee appointed in accordance with Schedule 2 of the Rules for the purpose of selection and appointment of Samvida Shala Shikshak. Thereafter, rule 7 contemplates method of recruitment by the Selection Committee to be constituted strictly in accordance with the provisions of column No. 6 of schedule 2 of the rules. ( 12. Thereafter, rule 7 contemplates method of recruitment by the Selection Committee to be constituted strictly in accordance with the provisions of column No. 6 of schedule 2 of the rules. ( 12. ) SCHEDULE 2 of the Rules formulated in accordance with rule 5-2 Ga deals with composition of the Selection Committee and the manner in which the selection Committee is to be constituted. S. No. 1 of the aforesaid rule pertains to Shiksha Karmi Grade I, S. No. 2 to Shiksha Karmi Grade II and S. No. 3 to shiksha Karmi Grade III. Thereafter, column No. 6 deals with the composition of the Selection Committee. According to the provisions contemplated in the said rules for the purpose of appointment of Shiksha Karmi Grade II which is the subject matter of these petitions in the case of a Municipal Council or Nagar panchayat, President of Nagar Panchayat is Chairman of the Selection committee, Chief Municipal Officer in case of Municipal Council and Nagar panchayat and Commissioner in case of Municipal Corporation is the second member of the Selection Committee. Third member of the Selection committee is either the District Education Officer or the Principal of a Higher secondary School to be nominated by the Collector. Thereafter under clause IV of column No. 6, two experts in the subject are to be nominated. The experts are to be nominated by the Municipal Council, Nagar Panchayat or the Municipal corporation as the case may be. ( 13. ) IN the present case a perusal of the order impugned passed by the collector indicates that after reproducing the composition of Committee as detailed herein above in para 4 of his order Collector has considered the committee constituted in the present case and in para 5 it has been indicated by the Collector that one Shri S. S. Bhadoriya, Principal of Govt. Higher Secondary school, No. 1 Guna was nominated by the Collector on 31-7-2001 as per the requirement of clause III of column No. 6 and thereafter the Chief Municipal officer and the Chairman of the Education Committee have nominated one shri V. K. Jain, Lecturer, Maths in Govt. Higher Secondary School No. 1, Guna and Shri Suraj Singh, Assist. Teacher History in Govt. Higher Secondary School, guna to be experts in the subject under clause IV of column No. 6. Higher Secondary School No. 1, Guna and Shri Suraj Singh, Assist. Teacher History in Govt. Higher Secondary School, guna to be experts in the subject under clause IV of column No. 6. It has been found by the Collector that according to the statutory rules, experts in these subjects are to be nominated by the Municipal Council or the Nagar Panchayat as the case may be and in the present case experts in the subjects have been nominated not by the Municipal Council or the Nagar Panchayat but by the chief Municipal Officer and Chairman of the Education Committee constituted under Section 71 of the Municipal Council Act, 1961. ( 14. ) FINDING the formulation of the Selection Committee to be contrary to the aforesaid statutory provisions, Collector has quashed the entire selection on this ground. It has also been found by the Collector that expert in the subject of Urdu is also not present in the entire selection process and the records does not indicate that no such expert is called, on the contrary two outsiders whose designation and other particulars are not mentioned in the record were called to participate in the selection process. Finding the aforesaid infirmity in the matter of selection the entire selection has been quashed. ( 15. ) ONCE the composition of a selection committee to undertake the process of selection is controlled by a statutory provision entire selection has to be done strictly in accordance with the aforesaid statutory provision. No deviation from the aforesaid provision is permissible. Anything done which is found different, contrary to the requirements of the statute and is not in confirmity with the said provision would vitiate entire selection. Once it is found that selection committee was not constituted in accordance with the statutory provisions, the question of prejudice, bias or malafides looses its significance. It is well settled in law that if statute requires a particular thing to be done in a particular manner, anything done contrary to the requirements of the statute stands vitiated under law and all the consequential action thereof have to be declared as null and void. It is well settled in law that if statute requires a particular thing to be done in a particular manner, anything done contrary to the requirements of the statute stands vitiated under law and all the consequential action thereof have to be declared as null and void. That being the settled legal principle in the present case it is established from the records that two experts were not nominated by the Municipal Council as required in clause IV of column 6 Schedule 2 but they were called to appear in the selection process by orders issued by the Chief municipal Officer and Chairman of the Education Committee. This fact, the records indicates was admitted by the Chief Municipal Officer in the reply filed before the Collector and was also confirmed on the basis of report of S. D. O. Once, the aforesaid legal infirmity is established from the material available on record merely on the ground that the report of the S. D. O. was not made available to the petitioners interference cannot be made by this Court. Petitioners have failed to demonstrate before this Court as to in what manner the aforesaid finding recorded by the Collector is illegal. Even if the report of the s. D. O. was not produced or given to the petitioners, once the Chief Municipal officer, Municipal Council, Guna in reply filed by him before the Collector has admitted the position with regard to nomination of the experts in the subject by the C. M. O. and the Chairman of the Education Committee it was for the petitioners to establish that this reply is incorrect. Records indicates that the entire selection proceedings were placed before the Collector and Collector has confirmed the same from the records. It is also indicated from the order of the collector that in the subject of Urdu also proper nomination of expert has not been made. All these infirmities in the composition of the selection committee being contrary to the statutory provisions that is Recruitment Rules of 2001 1 find no error in the order passed by the Collector quashing the entire selection proceedings. ( 16. All these infirmities in the composition of the selection committee being contrary to the statutory provisions that is Recruitment Rules of 2001 1 find no error in the order passed by the Collector quashing the entire selection proceedings. ( 16. ) ARGUMENT of learned Counsel for the petitioners to the effect that prejudice is not established or demonstrated in the matter or that there was no bias or malafides will be of no consequence once it is found that the selection committee is not constituted in accordance with the provisions of law. ( 17. ) QUESTION of bias and prejudice would be of significance only if there was some procedural irregularities in the matter which is not mandatory in nature and is uncontrolled by any statutory provision. It is, therefore, clear from the aforesaid that the mandatory provisions of Recruitment Rules of 2001 have been violated in the matter of composition of selection committee and once it is found that the Committee constituted which conducted the selection is not in accordance with the statutory provisions question of prejudice being caused, malafides being established or biased being in existence are of no consequence. Anything done contrary to the statutory provisions is vitiated and the consequential selection also stands vitiated for this reason. Accordingly, on the ground of prejudice biased or malafides being not established, interference cannot be made in this petition. ( 18. ) AS far as arguments of estoppel advanced by Shri Raghuvanshi is concerned, there cannot be any estoppel against the statutory provisions. Once, it is found that the selection committee itself was constituted without following the statutory provisions merely because some of the candidates had participated in the selection committee without prejudice would not make the selection otherwise illegal to be in accordance with law. The law laid down in the case of chandra Prakash Tiwari (supra), will not apply in the facts and circumstances of the present case. Similarly in the case of S. R. Jain (supra) the question of selection committee be constituted contary to the statutory requirements was not considered. That was a case where the selection committee was constituted as per the statutory provision but on the ground that certain experts in the subject belong to the same University and, therefore, they were prohibited under law from participating in the selection process the question was considered on the basis of such an objection. That was a case where the selection committee was constituted as per the statutory provision but on the ground that certain experts in the subject belong to the same University and, therefore, they were prohibited under law from participating in the selection process the question was considered on the basis of such an objection. Both these cases will not help the petitioners in the present case in view of the findings recorded to the affect that the Constitution of the selection committee stands vitiated being contrary to the recruitment rules. ( 19. ) ACCORDINGLY, in the facts and circumstances of the case I find no error in the order passed by Collector quashing the entire selection process. ( 20. ) ACCORDINGLY, no case is made out for interference in the matter. All the petitions stands dismissed without any orders as to costs. Writ Petitions dismissed.