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2008 DIGILAW 1422 (MP)

SAURABH SINGH v. STATE OF M P

2008-12-10

A.K.PATNAIK, AJIT SINGH

body2008
Judgment ( 1. ) THIS is an appeal filed by the appellant under Section 2 (1) of the Madhya pradesh Uchcha Nyalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 against the order dated 20-2-2008 passed by learned Single Judge under Article 226 of the Constitution of India in W. P. No. 14220/2007 (S ). ( 2. ) THE facts briefly are that the appellant was born in District Rewa in the State of Madhya Pradesh in 1986 and did his schooling in schools situated in district Rewa up to Class IX, but he studied in Class X in Durg and passed higher Secondary School Examination conducted by the Chhattisgarh Board of secondary Education, Raipur in 2002. Pursuant to an advertisement dated 25-3-2006 for recruitment to the post of Constable, the appellant applied and was selected, but by a communication dated 22-9-2007 of the respondents he was informed that his name has been deleted from the select list as he had not obtained educational qualification from any school situated in Madhya Pradesh. Aggrieved, the appellant filed W. P. No. 14220/2007 (S) praying for a direction to the respondents to appoint him on the post of Constable. By order dated 20-2-2008 the learned Single Judge dismissed the writ petition after holding that the appellant had not acquired the requisite educational qualification from the state of Madhya Pradesh as per the condition contained in the advertisement dated 25-3-2006. The learned Single Judge further held in the impugned order that in the circular dated 27-3-1998, the State Government has stipulated the condition for recruitment to all civil posts in the departments of Government of madhya Pradesh that the candidates must have passed the Higher Secondary school Examination or obtained Bachelor Degree from the school/college situated in Madhya Pradesh and this condition in the circular has not been challenged by the appellant in the writ petition. ( 3. ) MR. Sanjay Ram Tamrakar, learned Counsel for the appellant, submitted that the appellant was not aware of the circular dated 27-3-1998 issued by the General Administration Department of the Government of madhya Pradesh laying down the condition that the candidates applying for any civil post must have passed Higher Secondary Examination or Graduate Degree examination from Madhya Pradesh and therefore the appellant had not challenged this circular. He further submitted that in any case the appellant had challenged the advertisement dated 25-3-2006 which stipulated the condition that the educational qualification must have been obtained by the candidate from a school situated in Madhya Pradesh and the learned Single Judge ought to have decided the validity of this condition stipulated in the advertisement. He submitted that in a recent decision in State of Madhya Pradesh Vs. Ritesh Kumar sharma and others, 2006 (2) M. P. H. T. 11 (DB) = 2006 (3) MPLJ 53 , a Division bench of this Court has held that such a condition providing that only those candidates who have passed Higher Secondary Examination or obtained graduate Degree from the State of Madhya Pradesh are eligible is discriminatory and violative of Article 14 of the Constitution of India. He submitted that the Court should therefore strike down this condition in the impugned advertisement dated 25-3-2006 as ultra vires the Constitution. ( 4. ) MR. Vivekanand Awasthy, learned Government Advocate for the state submitted that no return had been filed in the writ petition but a return has been filed in the writ appeal by the respondent and in Para 3 of the return the respondents have taken a stand that a condition had been stipulated in the advertisement that the candidate should have passed the Xth Class examination under 10 + 2 system or should have passed Higher Secondary Examination from the State of Madhya Pradesh pursuant to a circular dated 27-3-1998 of the State government. Mr. Awasthy further submitted that law is well settled that the recruitment process has to be completed in accordance with the rules and for this reason the recruitment has been done in accordance with the circular and the advertisement and therefore the appellant is not entitled to appointment to the post of Constable. ( 5. ) IN a Division Bench judgment in State of Madhya Pradesh Vs. Ritesh kumar Sharma and others (supra), this Court has held that Article 14 of the constitution, which guarantees equal protection of law and equality before law permits reasonable classification but any such reasonable classification must be based on an intelligible differentia which differentiates the persons who are included in the class from the persons who are excluded from the class and such differentia must have a reasonable nexus with the object sought to be achieved. This Court has further held in this decision that classifying of candidates for recruitment to State Civil Services excluding those candidates who have passed out Higher Secondary Examination or obtained Graduate Degree from the schools/colleges of the State other than State of Madhya Pradesh from competition and restricting the competition to only those candidates who have passed Higher Secondary Schools of from the institutions of Madhya Pradesh has no reasonable nexus with the object of State Civil Services Examination. This Court has further held in the aforesaid decision :-"it is not necessary that those who have passed Higher Secondary examination or obtained Graduate Degree from schools or colleges in the State of M. P. would be more meritorious than those who have passed Higher Secondary Examination or obtained graduate Degree from the schools or colleges outside the State of m. P. Similarly, it is not necessary that only those who have passed higher Secondary Examination or obtained Graduate Degree from schools or colleges in the State of M. P. , will have better knowledge of geography, history and culture of the State of M. P. Even those who have passed Higher Secondary Examination or obtained graduate Degree from the schools or colleges outside the State of m. P. , may have good knowledge of geography, history and culture of the State of M. P. As has been held by the Tribunal in Para 10 of the impugned order, restricting the competition to only those candidates who have passed their Higher Secondary or Graduate degree examinations from institutions in Madhya Pradesh, is not in the larger public interest. As has been pointed out by the Tribunal many bright students go outside the State to study in good institutions and denying the opportunity of employment to them within Madhya Pradesh has the effect of penalising merit and encouraging mediocrity which is certainly not in the interest of the state. Thus, although there is a differentia adopted for classifying persons by the Circular dated 2-12-1997 and the condition No. 4 in the advertisement issued by the PSC, such differentia has no rational nexus with the object sought to be achieved. The classification adopted by the circular dated 2-12-1997 and condition no. Thus, although there is a differentia adopted for classifying persons by the Circular dated 2-12-1997 and the condition No. 4 in the advertisement issued by the PSC, such differentia has no rational nexus with the object sought to be achieved. The classification adopted by the circular dated 2-12-1997 and condition no. 4 in the advertisement issued by the PSC is thus not a reasonable classification and, as has been held by the Tribunal, the said circular dated 2-12-1997 and condition No. 4 in the advertisement issued by the PSC deny the equality of opportunity in matters relating to public employment in the State of Madhya pradesh and are thus in contravention of Articles 14 and 16 of the constitution of India. " ( 6. ) IT will be clear from the aforesaid judgment in State of Madhya pradesh Vs. Ritesh Kumar Sharma and others (supra), that a condition in the advertisement issued by the PSC pursuant to circular dated 2-12-1997 was held to be in contravention of Articles 14 and 16 of the Constitution because it denied equality of opportunity in matters relating to public employment in the State of madhya Pradesh. For the self same reasons, we hold that the condition stipulated in the advertisement dated 25-3-2006 pursuant to the circular dated 27- 3-1998 of the State Government is discriminatory and violative of Articles 14 and 16 of the Constitution inasmuch as it denies equality of opportunity in the matters of public employment in the State of Madhya Pradesh to persons who have passed Class Xth (High School) Examination from other States. ( 7. ) MR. Awasthy, however submitted that the appellant having applied pursuant to that advertisement and having participated in the selection cannot now challenge the condition in the advertisement that only candidates who have passed Higher Secondary Examination from a school in Madhya Pradesh is eligible to be considered for selection. This submission of Mr. Awasthy is based on the principle of waiver or estoppel. In Olga Tellis and others Vs. Bombay municipal Corporation and others, AIR 1986 SC180, the Supreme Court relying on its earlier decision in Basheshar Nath Vs. Commissioner of Income Tax, Delhi and Rajasthan and another, AIR 1959 SC 149 , has held that there could be no waiver of any of the fundamental rights guaranteed by Part III of the constitution. Bombay municipal Corporation and others, AIR 1986 SC180, the Supreme Court relying on its earlier decision in Basheshar Nath Vs. Commissioner of Income Tax, Delhi and Rajasthan and another, AIR 1959 SC 149 , has held that there could be no waiver of any of the fundamental rights guaranteed by Part III of the constitution. Once we have held that the fundamental right of the appellant to equality of opportunity in the matters relating to public employment in the State of Madhya Pradesh under Articles 14 and 16 of the Constitution had been violated, we cannot deny relief to the appellant only on the ground that pursuant to the advertisement which contains a condition that the requisite educational qualification should have been obtained from a school situated in Madhya pradesh the appellant participated in the recruitment process. ( 8. ) IN the result, we allow this appeal and direct the respondents to appoint the appellant on the post of Constable within a period of two months by the Competent Authority from the date of receipt of the certified copy of this order. The appellant will be paid salary from the date of his appointment but his seniority will determine as per rules as if he was appointed on the basis of selection made pursuant to the advertisement dated 25-3-2006.