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Madhya Pradesh High Court · body

2009 DIGILAW 164 (MP)

GUNJITA GUPTA v. STATE OF M P

2009-02-04

DIPAK MISRA, R.K.GUPTA

body2009
Judgment ( 1. ) IN this batch of writ appeals, the appellants, Samvida shala Shikshak Grade-II and Grade-III, working in the janpad Panchayat Sahahpura, have challenged the order dated 23. 9. 2008 passed by the learned single Judge in W. P. No. 7299/2008 (S) whereby he has allowed the said writ petition filed by the original writ-petitioner, namely, Miss kanchan Upadhyay and further directed to take action for cancelling the entire selection and to conduct fresh selection in accordance with law. The present appeals have been preferred by the candidates who were selected and have been directed to be terminated by the authorities concerned on the basis of the impugned judgment though they were not parties before the learned single Judge. ( 2. ) THE factual matrix giving rise to the grievance of the appellants is that the original petitioner, Miss Kanchan upadhyay, had filed the petition before this Court asserting that she had applied her candidature for the post of samvida Shala Shikshak in pursuance of the advertisement dated 29. 4. 2006 issued by the Janpad Panchayat Shahpura, dist. Jabalpur. According to her, she appeared in the selection process held in the year 2005 and obtained 47. 65% marks but due to certain anomalies that ensued in the process of selection she was not appointed whereas the candidates who had received lesser marks and also not eligible, were given appointments contrary to the statutory rules and requirement of the advertisement. ( 3. ) TAKING note of the grievance of the original-writ petitioner and the return submitted by the respondents on being noticed to show cause, the learned single Judge found that various irregularities had come to light in the process of selection conducted in Janpad Panchayat, Shahpura in pursuance of the advertisement dated 29-4-2006 at the level of the then Chief Executive Officer and Block education Officer. It was brought to the notice of the learned single Judge that for the irregularities committed by these persons they had been issued charge-sheets and enquiry was in progress. As the large scale irregularities came to light and facts got established on record that original writ-petitioner in spite of being eligible to be included in the merit list was not appointed and persons who had received lesser marks than her i. e. even 27. As the large scale irregularities came to light and facts got established on record that original writ-petitioner in spite of being eligible to be included in the merit list was not appointed and persons who had received lesser marks than her i. e. even 27. 42% were appointed, the learned single Judge reached a finding that the entire selection conducted in the matter of recruitment of Samvida Shala Shikshak Grade-II and Grade-III in Janpad Panchayat, Shahpura is vitiated and the entire selection is liable to be quashed and the Collector should be directed to proceed in the matter for making fresh appointment in accordance with law. The finding as such appears to be arrived at by the learned single Judge on the basis that the irregularities are such that entire selection stands vitiated and it is not possible to differentiate between properly selected candidates and illegally selected candidates on the basis of the material that have come on record. ( 4. ) WE have been apprised of the fact that certain persons who were aggrieved to have been found wrongly included in the select list because of excess appointments having been made than that of the advertised vacancies and were removed from the select list, filed appeal before the collector. The Collector ordered the Chief Executive officer, Janpad Panchayat for an enquiry into their grievances. The Chief Executive Officer submitted a report to the Collector and on that basis certain lists were issued classifying the candidates in four categories namely (1) qualified working teachers who would continue, (2) teachers whose appointments would be cancelled being disqualified, (3) teachers who were removed but would be included being qualified and (4) persons who had resigned. This exercise was based upon the principles of weeding out wherein the persons who were not entitled to be selected or to be continued were to be removed after affording opportunity and qualified persons who were deprived, were to be brought in service. Thereupon, the Collector vide order dated 6. 5. 2008, (Annexure R/iv to the return filed by respondents to the writ petition) directed to give an opportunity of hearing to the persons against whom the allegation was that they were illegally selected. It was also directed to invite objections on the report from all concerned and to give opportunity of hearing and then to pass appropriate orders. ( 5. 2008, (Annexure R/iv to the return filed by respondents to the writ petition) directed to give an opportunity of hearing to the persons against whom the allegation was that they were illegally selected. It was also directed to invite objections on the report from all concerned and to give opportunity of hearing and then to pass appropriate orders. ( 5. ) THE persons who were aggrieved to have been found wrongly admitted in the select list filed writ petitions before this Court which were registered as WP No. 6241, 6433, 6465 and 6700 all of the year 2008 (S ). These petitions have been dismissed in the light of the order passed in the case of Miss Kanchan Upadhyay (supra ). ( 6. ) BE it noted, the appellants are the persons belonging to a list of the persons who are entitled to be retained in service as per the method of weeding out adopted by the collector in pursuance of order dated 6. 5. 2008. ( 7. ) SUBMISSION put forth on behalf of the appellants is that in view the aforesaid exercise done by the Collector, the learned single Judge could not have set aside the whole selection particularly when the persons who were selected and working, were not the parties before the learned single judge. Further submission is that when on basis of the order passed by the Collector, the CEO has already carried out the verification and given his report then on the basis of the said report, the learned single Judge should have also affirmed the order passed by the Collector wherein the collector decided to give an opportunity of hearing to the persons who were going to be affected and against whom the allegation was that they were illegally selected. ( 8. ) WE have not been apprised by any of the parties whether any selectee against whom the report relating to the illegal selection was made, has applied either to intervene or otherwise or even any appeal against the order passed by the Collector has been filed. ( 9. ) WE have carefully perused the order passed by the learned single Judge, heard the learned counsel for the parties at length and minutely gone through the record. ( 10. ( 9. ) WE have carefully perused the order passed by the learned single Judge, heard the learned counsel for the parties at length and minutely gone through the record. ( 10. ) AT the outset, it is apt to mention that in the writ petition filed by Miss Kanchan Upadhyay before the learned single Judge none of the persons who were selected were impleaded as the respondents, yet the learned single Judge set aside whole of the selection. In this context, it would be pertinent to take note of the decision in Prabodh Verma v. State of U. P. , (1984) 4 SCC 251 wherein it has been held that a High Court ought not to hear and dispose of a writ petition under Article 226 without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually. ( 11. ) IN All India SC and ST Employees Association and another v. A. Arthur Jeen and others, (2001) 6 SCC 380 their Lordships of the Apex Court have opined that while challenging the panel of selected candidates, at least some of the successful candidates must be impleaded as respondents. In the present case, none of the persons who were to be affected in case of annulment of entire selection were impleaded as parties. ( 12. ) APART from the aforesaid, the learned single Judge had expressed the view that the Collector has also found that there had been serious irregularities and the same have been supported by the Collector while filing the return. In the present case, it is seen that the Collector did not file a separate return and the return filed by the respondents is supported by the Chief Executive Officer. The Collector in his order dated 6. 5. 2008 has applied the principle of weeding out. All the facts were available before the learned single Judge and the order passed by the Collector was also placed on record. The exercise of weeding out by the collector was a valid exercise which was based on the report submitted the Chief Executive Officer. The learned single Judge has found that since the entire selection is illegal, it is not possible to apply the principle of weeding out. The exercise of weeding out by the collector was a valid exercise which was based on the report submitted the Chief Executive Officer. The learned single Judge has found that since the entire selection is illegal, it is not possible to apply the principle of weeding out. On the contrary, the principle of weeding out was already applied by the Collector and separate lists were prepared. The learned single Judge has not recorded any finding that various lists prepared by applying the principles of weeding out were incorrect. ( 13. ) FOR the aforesaid reasons and keeping in view the principle of natural justice and the facts and circumstances of the present case, the order passed by the Collector deserves to be affirmed. In our considered opinion, the reasoning ascribed by the learned single Judge are not in accord with the factual base and the conceptual principle of weeding out. Accordingly, we set aside the order passed by the learned single Judge and affirm the order passed by the collector. The persons against whom by applying the principles of weeding out it is found that their selection is proper, they will continue to remain in service and, therefore, their orders of termination are quashed. We further direct that the Collector, Jabalpur shall afford an opportunity of hearing to all such persons whose appointment are liable to be annulled on the basis of the report submitted by the Chief Executive Officer. The collector after considering the representations so received from the employees shall pass a final and speaking order. The whole exercise shall be carried out within a period of three months from the date of receipt of order passed today. As we have set aside the order passed by the learned single Judge, it is needless to say that selectees, against whom no report was submitted by the CEO, their services should not be terminated and they will be allowed to continue in service. However, it is also directed that the persons, in the order of the Collector dated 6. 5. 08, who were not selected but were entitled to be appointed, shall also be appointed. ( 14. ) IN the result, the present appeals are allowed. In the facts and circumstances of the case, there shall be no order as to costs.