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Madhya Pradesh High Court · body

2008 DIGILAW 1157 (MP)

REKHA DHURVE v. STATE OF MADHYA PRADESH

2008-09-16

A.K.PATNAIK, AJIT SINGH

body2008
Judgment ( 1. ) THE petitioner is a Law Graduate and practicing lawyer and belongs to dhurve Tribe of the State of Madhya Pradesh which is a Scheduled Tribe as per the Scheduled Caste/scheduled Tribe Order, 1950. The petitioner applied for recruitment to the post of Civil Judge, Class II in the State of Madhya Pradesh to the Madhya Pradesh Public Service Commission (for short "the MPPSC") and on the basis of her performance in the examination and interview was selected and placed in Serial No. 1 of the supplementary list. Respondent Nos. 3 and 4 were also selected and placed at Serial Nos. 86 and 92 in the select list. The mppsc sent its recommendation along with the select list and the supplementary list to the State Government and the State Government initially appointed respondent Nos. 3 and 4 to the posts of Civil Judge Class II reserved for Scheduled Tribe candidates but subsequently cancelled their appointment on the ground that respondent Nos. 3 and 4 did not belong to Scheduled Tribe. The cancellation of the appointments of respondent Nos. 3 and 4 was challenged in this Court by respondent Nos. 3 and 4 in W. P. No. 10128/2006 (S) but by a judgment delivered by us on 10-9-2008 the cancellation of the appointment of respondent Nos. 3 and 4 was upheld by this Court. The case of the petitioner in this writ petition is that since she was placed in the supplementary list at Serial no. 1, on cancellation of the appointments of respondent Nos. 3 and 4 to the posts of Civil Judge, Class II reserved for Scheduled Tribe candidates, the petitioner was entitled to be appointed to the post of Civil Judge Class II with retrospective effect from the date the respondent Nos. 3 and 4 were appointed. The petitioner has, therefore, prayed for appropriate reliefs in this writ petition under Article 226 of the Constitution. ( 2. ) MR. D. K. Dixit, assisted by Mr. K. K. Pandey and Mr. Sanjay Patel, learned Counsel for the petitioner submitted that respondent Nos. 3 and 4 who did not belong to Scheduled Tribe had been wrongly been appointed to the two posts reserved for Schedule Tribe candidates and since respondent Nos. ( 2. ) MR. D. K. Dixit, assisted by Mr. K. K. Pandey and Mr. Sanjay Patel, learned Counsel for the petitioner submitted that respondent Nos. 3 and 4 who did not belong to Scheduled Tribe had been wrongly been appointed to the two posts reserved for Schedule Tribe candidates and since respondent Nos. 3 and 4 are now finally found not to be belonging to Scheduled Tribe and their appointment has been cancelled by the State Government, the petitioner was now entitled to be appointed to the post of Civil Judge, Class II reserved for scheduled Tribe Candidates and hence a mandamus should be issued to the state Government to appoint the petitioner as Civil Judge, Class II. He further submitted that petitioner has filed the writ petition claiming selection and appointment on the post of Civil Judge, Class II during validity period of the select list and it has been held by the Apex Court in State of U. P. Vs. Ram Swamp saroj, AIR 2000 SC 1097 , that where a person files a writ petition before the expiry of the validity period of the select list, the Court cannot decline to grant relief to the petitioner merely because the validity period has expired during the pendency of the writ petition. ( 3. ) MR. V. K. Shukla, Deputy Advocate General appearing for the state, respondent No. 1, on the other hand submitted that in State of U. P. and others Vs. Rajkumar Sharma and others, (2006) 3 SCC 330 , the Supreme Court had held that selectees cannot claim appointment as a matter of right and even if in some cases appointment have been made by mistake, the selectee cannot claim appointment as a matter of right. ( 4. ) MR. K. S. Wadhwa, learned Counsel appearing for the MPPSC, respondent No. 2, does not dispute the position that in case respondent Nos. 3 and 4 were not selected and placed in the select list of Scheduled Tribe candidates, the name of the petitioner would have found place in the select list of Scheduled Tribe candidates. ( 5. ) MR. P. S. Gaharwar, learned Counsel appearing for respondent nos. 3 and 4 did not dispute the position that the appointment of respondent nos. 3 and 4 have been cancelled by the State Government and that such cancellation of the appointment of respondent Nos. ( 5. ) MR. P. S. Gaharwar, learned Counsel appearing for respondent nos. 3 and 4 did not dispute the position that the appointment of respondent nos. 3 and 4 have been cancelled by the State Government and that such cancellation of the appointment of respondent Nos. 3 and 4 to the post of Civil judge Class II reserved for Scheduled Tribe candidates have bee upheld by this court in W. P. No. 10128/2006. ( 6. ) WE have considered the aforesaid submissions of learned Counsel for the parties and we find that appointments to the post of Civil Judge Class II are made under the Madhya Pradesh Lower Judicial Service (Recruitment and conditions of Service) Rules, 1994 (for short "the Rules, 1994" ). Rules 6 and 10 of Rules 1994 which are relevant are quoted herein below:- "6. Reservation of posts for Scheduled Castes, Scheduled Tribes and Other Backward Classes.- Posts for direct recruitment shall be reserved for the candidates belonging to Scheduled Castes, scheduled Tribes and Other Backward Classes in accordance with the provisions of the Madhya Pradesh L ok Seva (Anusuchit jatiyon, Anusuchit Janjatiyon Aur Anya Pichhade Vargon Ke Liye arakshan) Adhiniyam, 1994 (No. 21 of 1994 ). 10. List of candidates recommended by the Commission.- (1)The Commission shall forward to the Government a list arranged in order of merit of the candidates who have qualified by such standards as the Commission may determine. The list shall be published for general information. (2) Subject to the provisions of these rules and the Madhya Pradesh civil Services (General Conditions of Service) Rules, 1961 candidates will be considered for appointment to the available vacancies in the order in which their names appear in the lists. " ( 7. ) IT will be clear from a reading of Rule 6 of Rules 1994 quoted above that posts for direct recruitment shall be reserved for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes in accordance with the provisions of Madhya Pradesh L ok Seva (Anusuchit jatiyon, Anusuchit Janjatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 (for short "the Adhiniyam, 1994" ). Section 4 of the adhiniyam, 1994 fixes the percentage for reservation of posts and standard of evaluation for Scheduled Castes, Scheduled Tribes and Other Backward Classes and further provides that appointments to vacancies shall be made in accordance with a roster as may be prescribed. Section 5 of the Adhiniyam, 1994 further provides that the State Government may, by order, entrust the appointing Authority or any officer of employer with the responsibility of ensuring the compliance of the Adhiniyam, 1994 and Section 6 of the adhiniyam, 1994 provides that any Appointing Authority entrusted with the responsibility under sub-section (1) of Section 5, who willfully acts in a manner intended to contravene or defeat the provisions of Adhiniyam, 1994 shall be liable for the penalty mentioned there. Sub-rule (1) of Rule 10 of the Rules, 1994 provides that the MPPSC shall forward to the State Government a list arranged in order of merit of the candidate who have qualified by such standards as the Commission may determine. Sub-rule (2) of Rule 10 of the Rules, 1994 further provides that subject to the provisions of these rules and the Madhya pradesh Civil Services (General Conditions of Service) Rules, 1961, candidates will be considered for appointment to the available vacancies in the order in which their names appear in the list. ( 8. ) WE are of the considered opinion that had respondent Nos. 3 and 4 not been selected for appointment to the posts reserved for Scheduled Tribe candidates, the name of the petitioner would have found place in the select list and not in the supplementary list and had her name found place in the select list, she would have been entitled for consideration for appointment to an available vacancy for Scheduled Tribe candidate in accordance with the provisions of sub-rule (2) of Rule 10 of the Rules, 1994. It is not disputed that during the validity period of the select list, the petitioner has approached this Court in the present writ petition and, therefore, we cannot decline relief to the petitioner on the ground that the validity period of the select list of the Scheduled Tribe candidates has expired because of the pendency of the writ petition. ( 9. ) THE decision of the Supreme Court in State of U. P. and others Vs. Rajkumar Sharma and others (supra), cited by Mr. ( 9. ) THE decision of the Supreme Court in State of U. P. and others Vs. Rajkumar Sharma and others (supra), cited by Mr. V. K. Shukla, will have relevance only where the Government has considered a candidate placed in the select list and yet decided not to appoint such candidate. That stage has not come in the present case. In the present case, since the petitioner was not placed in the select list and in her place respondent Nos. 3 and 4 had been placed in the select list for appointment to the post of Civil Judge Class II reserved for Scheduled Tribe candidates, the Government has not considered the petitioner for appointment to a vacancy reserved for Scheduled Tribe candidates. ( 10. ) FOR the aforesaid reasons, we direct the State Government, respondent No. 1, to consider the petitioner for appointment to an available vacancy in the post of Civil Judge Class II reserved for Scheduled Tribe candidate in accordance with the Rules, 1994 as well as the relevant provisions in the Adhiniyam, 1994 and take a final decision within a period of one month from the date of filing of the certified copy of the order. In case the State government decides to appoint the petitioner to the post of Civil Judge Class II, the State Government will also consider whether she should be appointed with retrospective effect when respondent Nos. 3 and 4 were appointed and whether she should be entitled to arrears to pay or seniority with retrospective effect in accordance with the relevant rules. I he writ petition is disposed of.