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Madhya Pradesh High Court · body

2011 DIGILAW 1354 (MP)

Harish Chandra Yadav v. State of M. P.

2011-11-30

ALOK ARADHE, SUSHIL HARKAULI

body2011
ORDER 1. With the consent of parties, the matter has been heard finally. 2. In this intra-Court appeal the appellant has challenged the validity of the order dated 24.11.2009 passed by a learned Single Judge of this Court, whereby the writ petition preferred by the appellant has been dismissed. 3. The facts leading to filing of the writ appeal, briefly stated, are that Gram Panchayat Kalpi issued an advertisement for appointment of Panchayat Karmi on 24-7-2007. Pursuant to the said advertisement, 19 candidates submitted their applications out of which l0 applicants were found ineligible at the time of scrutiny of applications. Remaining 9 applications were considered in the meeting of the general body of Gram Panchayat Kalpi. The Gram Panchayat passed a resolution on 8-8-2007 for appointment of the appellant as Panchayai Karmi. In pursuance of the aforesaid resolution,the appellant was appointed as Panchayat Karmi vide order dated 1l-8-2007. Being aggrieved by the appointment of the appellant on the post of Panchayat Karmi one candidate namely Ku. Indira, preferred an appeal before the Sub Divisional Officer on the ground that the appointment of the appellant was not in consonance with the circular dated 13-8-2007 issued by the State Government. 4. In the appeal, which was preferred by aforesaid Ku. Indira, the respondent No. 5 filed an application for her impleadment, which was rejected by the S.D.O. with the liberty to the respondent No. 5 to prefer an independent appeal, which she did not file. 5. Eventually, the appeal preferred by aforesaid Ku. Indira was dismissed by the Sub Divisional Officer vide order dated 17-12-2007 on the ground that the appellant was duly appointed on the basis of decision taken by the members by majority in the general body meeting of Gram Panchayat. 6. Being aggrieved by the order dated 17-12-2007 passed by the Sub Divisional Officer, the respondent No. 5 filed a revision before the Additional Collector, Mandla. The revision preferred by the appellant was dismissed vide order dated 29-5-2008. The respondent No. 5 challenged the order passed by the Additional Collector in an appeal before the Additional Commissioner. 6. Being aggrieved by the order dated 17-12-2007 passed by the Sub Divisional Officer, the respondent No. 5 filed a revision before the Additional Collector, Mandla. The revision preferred by the appellant was dismissed vide order dated 29-5-2008. The respondent No. 5 challenged the order passed by the Additional Collector in an appeal before the Additional Commissioner. The appeal preferred by the respondent No. 5 was allowed by the Additional Commissioner vide order dated 10-7-2009 and the appointment of the appellant was set aside inter alia on the ground that appellant could/should not have been selected/appointed because (i) there were other candidates who were higher in merit than the appellant, and (ii) that the appellant was convicted for offences under sections 294, 341,323,324 and under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 7. The appellant challenged the order passed by the Additional Commissioner dated 10-7-2009 in the writ petition before the learned Single Judge. The learned Single Judge vide order dated 24-1l-2009 dismissed the writ petition preferred by the appellant. Hence this writ appeal. 8. Learned counsel for the appellant has assailed the setting aside of the appellant’s appointment on the ground that (a) the appeal at the instance of respondent No. 5 was not maintainable, (b) that at the time when the appellant was appointed on the post of Panchayat Karmi, there were no rules governing the service conditions of Panchayat Karmi and, therefore, the appointment of appellant who is an ex-convict or was not the most meritorious was not barred under any rule. 9. The appellant further submitted that that rules referred to in the impugned order of the learned Single Judge namely, M. P. Panchayat Service (Recruitment and General Conditions of Service) Rules, 1999, do not apply to the appellant as the appellant was appointed on the post of Panchayat Karmi in Gram Panchayat whereas the aforesaid rules apply in respect of the posts under Janpad Panchayat and Zila Panchayat. 10. On the other hand, learned counsel for the respondent No.5 submitted that the order passed by the learned Single Judge does not call for any interference. 11. We have considered the submissions made on both sides. 12. Under of M.P. Panchayats (Appeal and Revision) Rules, 1995, the right of appeal is not restricted to a party to the proceeding. 10. On the other hand, learned counsel for the respondent No.5 submitted that the order passed by the learned Single Judge does not call for any interference. 11. We have considered the submissions made on both sides. 12. Under of M.P. Panchayats (Appeal and Revision) Rules, 1995, the right of appeal is not restricted to a party to the proceeding. An appeal under Rule 3 can even be preferred by any person aggrieved. Therefore, it cannot be said that appeal at the instance of respondent No. 5 was not maintainable before the Additional Commissioner. In any case, Rule 5 of the aforesaid rules deals with the power of revision which can be exercised even suo motu. Therefore, the order passed by the Additional Commissioner cannot be said to be without jurisdiction. 13. Even if it is assumed for the sake of argument, that there were no service rules at the relevant time, governing the service conditions of Panchayat Karmi, yet we must keep in mind the mandate contained in Article 14 and more importantly Article 16 of the Constitution of India which deals with matters of public employment. An officer, authority or body providing public employment must act in a rational, fair and reasonable manner. The Public appointments cannot be permitted to be made at the whims and caprices of the appointing authority. The suitability of candidates for appointment to a public post must be adjudged on the basis of rational and reasonable criteria. 14. In our considered opinion, picking up a less meritorious candidate when more meritorious candidates are available for appointment, in absence of a cogent and rational reason for so doing would amount to arbitrary capricious and irrational exercise of power on the part of the appointing authority. Similarly, the appointing an ex-convict on a public post when candidates with no past criminal record are available would again amount to whimsical exercise of power unless cogent and justifiable reasons are assigned by the appointing authority for picking up the ex-convict in preference over more clean candidates. 15. In the instant case, the Gram Panchayat has failed to disclose any such reason for appointing the appellant who is a less meritorious candidate and is an ex-convict. 16. In view of the preceding analysis we are not inclined to interfere with the order passed by the learned Single Judge. The appeal is accordingly dismissed.