Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 245 (MP)

Draupati Tiwari v. State of M. P.

2013-02-25

K.K.TRIVEDI, S.A.BOBDE

body2013
JUDGMENT : K. K. Trivedi, J.:- This writ appeal under section 2(1) of the M. P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, has been filed calling in question the order dated 12-8-2011 passed in Writ Petition No. 1 1983/08(8), by which the writ petition filed by the appellant against the order of the Additional Commissioner, has been dismissed. 2. Facts giving rise to filing of this appeal in brief are that an advertisement was issued by the Gram Panchayat concerned for appointment of Anganwadi Worker in the centre in question. The appellant and the respondent No. 5 submitted their candidature for appointment to the aforesaid post. The appellant claimed the preference being a polio affected person with 45% disability and having passed Higher Secondary School Certificate Examination. It was stated by the appellant that she was the local resident of the ward and was entitled for appointment as Anganwadi Worker. The respondent No. 5 also submitted her candidature and claimed the preference being the widow, having passed the Higher Secondary School Certificate Examination. The process of selection was done, the candidature of respondent No. 5 was excluded, the appellant was selected and appointed by the Selection Committee vide order dated 29-9-2007. The appellant joined on the post on 5-10-2007, after tendering resignation from the post of Asha Karyakarta. According to the appellant, she underwent the training and was working on the post. 3. The selection and appointment of appellant was challenged before the Collector by the respondent No. 5. The allegations were made that the appellant was already working as Asha Karyakarta, her brother-in-law was a Panchayat Secretary/Panchayat Karmi of Gram Panchayat and, therefore, she was ineligible to be appointed on the post of Anganwadi Worker. The contention was raised that the candidature of respondent No. 5 was wrongly rejected though she has passed the qualifying examination. The Additional Collector, however, after hearing ail the sides dismissed the appeal of the respondent No. 5 on 27-12-2007. Being aggrieved by the dismissal of the appeal by the Additional Collector, the respondent No. 5 filed a second appeal before the Additional Commissioner Sagar Division, Sagar. After hearing the appeal, the Additional Commissioner reached to the conclusion that candidature of respondent No. 5 was wrongly rejected as she, too, was qualified to be considered for selection. Being aggrieved by the dismissal of the appeal by the Additional Collector, the respondent No. 5 filed a second appeal before the Additional Commissioner Sagar Division, Sagar. After hearing the appeal, the Additional Commissioner reached to the conclusion that candidature of respondent No. 5 was wrongly rejected as she, too, was qualified to be considered for selection. The appeal filed by the respondent No. 5 was allowed by the impugned order dated 18-9-2008, which was sought to be challenged in the writ petition before this Court by the appellant. Since the writ petition has been dismissed by the order under challenge in this appeal, the present intra Court appeal has been filed. 4. Learned counsel for the appellant Shri Udyan Tiwari, vehemently contended that the learned Single Judge has not carefully examined the findings recorded by the Additional Collector and has reached to the conclusion that the Additional Commissioner, Sagar Division Sagar has rightly interfered with the findings of the Additional Collector and has rightly set aside the order of the Additional Collector. It is contended that there was a period prescribed for making of an application for selection for appointment on the post of Anganwadi Worker. The respondent No. 5 was ineligible on the date of making of the application for her appointment on the post and even when the selection process was completed and the order of appointment was issued in respect of the appellant, the result of the examination of respondent No. 5 was not notified. As she has failed in the qualifying examination in one subject and the result of supplementary examination was declared much after the selection process was over, the respondent No. 5 was not to be considered at all for selection on the post of Anganwadi Worker. This materially important aspect was overlooked by the Additional Commissioner even when he interfered with the categorical findings recorded by the Additional Collector of the district. This particular aspect was not looked into by the learned Single Judge and wrongly the writ petition of the appellant was dismissed. 5. Per contra, it is submitted by Shri P. N. Dubey, learned counsel appearing on behalf of the respondent No. 5, that the supplementary examination of the respondent No. 5 for the qualifying examination had taken place in the month of July, 2007. 5. Per contra, it is submitted by Shri P. N. Dubey, learned counsel appearing on behalf of the respondent No. 5, that the supplementary examination of the respondent No. 5 for the qualifying examination had taken place in the month of July, 2007. The result was not notified though she came to know about passing of the said examination through some information put in the internet by the concerned Board and, therefore, she filed an affidavit before the Selection Committee that she has qualified the examination, but the mark sheet of the same has not been received by her. It is, thus, contended that on the date when the selection was conducted, the respondent No. 5 had already acquired the qualification prescribed for appointment on the post and, thus, her candidature was not to be excluded, it is contended that the fact relating to receipt of the mark sheet subsequently was not disputed, but the result was already notified and the same will be co-related to the date of examination, therefore, the candidature of the respondent No. 5 was not to be rejected only on the ground that the respondent No. 5 had not passed the qualifying examination. Secondly, the aspect that the brother-in-law of the appellant was in the employment as Panchayat Secretary of the Gram Panchayat and the process of selection was also for the purposes of making appointment of an Anganwadi Worker within the same Gram Panchayat, the appellant was not entitled to take part in such selection. Thus, it is contended that if these aspects were considered by the Additional Commissioner and the order of the Additional Collector of the district was set aside with a direction to appoint more meritorious candidate, no wrong was committed by the Additional Commissioner. Since these aspects have rightly been appreciated by the learned Single Judge, it is submitted by Shri P. N. Dubey, learned counsel for the respondent No. 5, that no interference in the order passed by the learned Single judge is called for and the writ appeal deserves to be dismissed. 6. We have heard learned counsel for the parties at length and minutely perused the record as well as relevant Scheme of making appointment. 7. The Scheme was made by the State Government for appointment of Anganwadi Worker and circulated on 10-7-2007 which is available on record of writ petition as Annx. P/7. 6. We have heard learned counsel for the parties at length and minutely perused the record as well as relevant Scheme of making appointment. 7. The Scheme was made by the State Government for appointment of Anganwadi Worker and circulated on 10-7-2007 which is available on record of writ petition as Annx. P/7. The Scheme specifically prescribes that a candidate seeking appointment on the post of Anganwadi Worker must have educational qualification of Higher Secondary (10+2) from a recognized Board, if the appointment was to be made in urban or rural areas. Only in tribal areas, if the candidates are to be appointed, the minimum educational qualification prescribed was VIII Class pass. The advertisement was issued pursuance to the said Scheme by the concerned authorities in the month of August, 2007 prescribing the last date for receipt of the application form in the office of the Project Officer between 4-8-2007 to 13-8-2007. It is not in dispute that the application was submitted by the respondent No. 5 on 9-8-2007 before the Project Officer. In the application itself, the respondent No. 5 has mentioned that she has been declared failed in the Higher Secondary School Certificate Examination of 2006 in one subject in which she has taken part in the supplementary examination and as soon as the result is declared the mark sheet would be produced. The respondent No. 5 also gave an affidavit to this effect. It is, thus, contended that in fact the result of the examination was declared sometime in the month of September, 2007 and subsequently a mark sheet was made available. With the return, the respondent No. 5 has filed the document to show that the result was declared for the examination held in the month of July, 2007 and the respondent No. 5 was declared successful in M. P. State Open School Higher Secondary Certificate Examination. However, the date of declaring the result was not mentioned in the mark sheet produced as Annx. R/2 filed along with the return of the respondent No. 5. However, the date of declaring the result was not mentioned in the mark sheet produced as Annx. R/2 filed along with the return of the respondent No. 5. The appellant has filed an application for taking additional documents on record in this appeal and along with the said application, a certificate of the centre Incharge, the Principal of the Government Excellent Higher Secondary School No. 1, Chhatarpur, has been produced in which it is categorically said that the respondent No. 5 had taken part in the supplementary examination held in the month of July, 2007 in English subject for the Higher Secondary School Certificate Examination and the result of the said examination was declared on 12-10-2007. Though an additional affidavit has been filed by the respondent No. 5 and she has controverted that the result was not declared in the month of October 2007 as claimed, but was declared sometime much before the date of selection, but nothing has been placed on record to indicate that the result of the examination of the respondent No. 5 was declared before 29-9-2007 i.e. the date on which the selection process was completed and the appellant was appointed. 8. The law in respect of the specific dates, as also the eligibility conditions with respect to the educational qualification has been well settled by the Apex Court in the case of Rekha Chaturvedi vs. University of Rajasthan and others, (1993) Supp(3) SCC 168 and in the case of Ashok Kumar Sonkar vs. Union of India and others, (2007) 4 SCC 54 , wherein it has been categorically held that the crucial date on which a candidate must possess the requisite qualification would be the last date on which the applications are to be submitted. In case a specific date is prescribed for filling the forms, that will be the date on which the candidate must possess the essential qualification. If on that day educational eligibility was not available to the respondent No. 5, as her result of supplementary examination was not declared by that time, she was not eligible to make an application nor the same was to be considered. Even if with the permission she has made the application, it was more so necessary for her to submit a proof of passing of the eligibility examination at least on the date the selection was made. Even if with the permission she has made the application, it was more so necessary for her to submit a proof of passing of the eligibility examination at least on the date the selection was made. The document produced by the appellant before this Court, the certificate issued by the Centre Incharge and the Principal of the Higher Secondary School is not controverted in its true sense, it was not proved by the respondent No. 5 that the result of her examination was declared much before the date the process of selection was over. In case of Pramod Kumar vs. U. P. Secondary Education Services Commission and others, (2008) 7 SCC 153 , the Apex Court has laid down that all eligibility conditions are to be verified before permitting any candidate to take part in selection. If the application of respondent No. 5 was scrutinised and her candidature was rejected because she had failed to produce the proof of passing the qualifying examination, again no wrong was committed by the selection Committee. Though it is stated at bar that the result of examination was seen by the respondent No. 5 in internet, no attempt whatsoever was made to produce a proof of such declaration of result either before the selection committee or writ Court or before the writ Appellate Court. The respondent No. 5 could have obtained a certificate in that respect from the competent authority of the M. P. State Open School Board under Right to Information Act. The writ petition itself was filed in the year 2008, such were the allegations made by the appellant in the writ petition, but nothing was placed on record by the respondent No. 5 to show that she has in fact passed the examination on the date when the selection process was completed or prior to the said date. Rejection of her candidature was thus cannot be said to be unjustified, 9. Facing with such a situation, learned counsel for the respondent No. 5 has contended that since the result of examination of respondent No. 5 was subsequently declared and she has passed the qualifying examination, therefore, relating back the date of taking part in the qualifying examination, it was to be held that the respondent No. 5 has passed the Higher Secondary School Certificate Examination in the month of July, 2007, when she has taken part in the said examination. It is, thus, contended that even otherwise if the mark sheet was not supplied to the respondent No. 5 timely and the same could not be produced before the concerning committee for consideration of the candidature of respondent No. 5 for appointment on the post of Anganwadi Worker, the rejection of her application only on this count was not justified. This aspect was not considered by the Additional Collector while deciding the first appeal of the respondent No. 5, but has been rightly taken into consideration by the Additional Commissioner in second appeal and it has been held that the rejection of the candidature of respondent No. 5 was unjustified. Since it was found that otherwise the respondent No. 5 was more meritorious than the appellant, it is contended by the learned counsel for the respondent No. 5 that rightful directions were given for cancellation of improper appointment of appellant and a further direction was given for appointment of respondent No. 5. It is contended that pursuance to such cancellation of appointment of appellant, the order of appointment was already issued in respect of respondent No. 5, therefore, the learned Single Judge was right in appreciating all these aspects and rejecting the claim made by the appellant in the writ petition. It is contended that the writ petition was, thus, rightly dismissed. 10. We are unable to agree with the submissions made by learned counsel for the respondent No. 5. To us the respondent No. 5 could not be said to be qualified to take part in the selection for appointment on the post of Anganwadi Worker on the last date of submission of the application form. Firstly, as per the law laid down by the Apex Court in the case of Rekha aud Ashok Sonkar once the cut off date is prescribed, every candidate must fulfil the eligibility conditions on the cut off date prescribed. Secondly, logically it is not possible to accept that the respondent No. 5 would be deemed to have passed the qualifying examination in which she has taken part in the month of July, 2007, in July, 2007 itself, since the result of which was declared only in the month of October, 2007. Taking part in the examination is not the complete exercise of obtaining an educational qualification as prescribed. The passing of examination would be only when the result of the examination is declared. Taking part in the examination is not the complete exercise of obtaining an educational qualification as prescribed. The passing of examination would be only when the result of the examination is declared. Only on the basis of declaration of the result subsequently, it could not be said that a candidate must be treated to have passed the examination with retrospective effect, from the date he or she has taken part in the said examination. We get support in holding so from the decision of the Apex Court in case of Council of Homoeopathic System of Medicine, Punjab vs. Suchintan, AIR 1994 SC 1761 wherein while dealing with almost same submission, the Apex Court refused to make applicable the "doctrine of relation back" in para 33 of report which reads thus :- "33. Supposing he passes in that subject or subjects in the supplementary examination he is declared to have passed at the examination as a whole. This should obviously be so; because once he completes all the subjects, he has to necessarily be declared to have passed. Merely on this language, "declared to have passed at the examination as a whole", we are unable to understand as to how the "doctrine of relation back" could ever be invoked. The invocation of such a doctrine leads to strange results. When a candidate completes the subjects only in the supplementary examination, then alone, he passes the examination. It is that pass which is declared. If the "doctrine of relation back" is applied, it would have the effect of deeming to have passed in the annual examination, held at the end of 12 months, which on the face of it is untrue." 11. If this analogy as propounded by the learned counsel for the respondent No. 5 is accepted, then it will create such anomalies in the matter of recruitment as all those who were net, qualified on the cut off date of making of application, would start claiming that subsequently they became qualified after declaration of result of their examination and, therefore, they should have been given an opportunity to take part in the selection. In that eventualities, the process of selection will never be completed nor any selection would be finalised. In that eventualities, the process of selection will never be completed nor any selection would be finalised. The other aspect is that the test has been laid down by the Apex Court that eligibilities are to be examined only on the date of occurrence of certain events such as creation of post or availability of vacancies. This being so, if the date of passing of the examination is to relate back to the date of taking part in the examination, such a pronouncement of law by the Apex Court would render meaningless. Even otherwise, there would be no justification for prescribing a last date for submission of the form. We are of the considered opinion that the eligibility conditions are to be examined only and only on the last date of submission of the form and not otherwise as has been laid down by the Apex Court in the case of Rekha and Ashok Kumar (supra). In view of this, the submissions made by learned counsel for the respondent No. 5 are liable to be rejected out rightly. Accordingly, there is no hesitation in our mind to hold that the respondent No. 5 was not qualified or eligible to take part in the selection held for the appointment on the post of Anganwadi Worker in the concerned area in the year 2007 as she has not passed the qualifying examination upto the last date of submission of the application form for appointment on the said post at the relevant time. 12. The other aspect is that the allegations were made that the appellant was related to a Panchayat Karmi/Secretary of the Gram Panchayat and, therefore, she could not have been selected for appointment. The Scheme made by the State Government itself contemplates the prohibited degrees of relations who may not be applicant for seeking appointment on the post of Anganwadi Workers. The explanation given in this respect in paragraph 4 of the Scheme makes it clear that only the father, mother, brother, sister, husband, wife, son, daughter and the daughter-in-law are the relations in prohibited degrees of a candidate if any such relative is holding a post in the Panchayat or other offices within the project in the same area, and if such persons are directly related, the candidate concerned will not be eligible to take part in selection for appointment on the post of Anganwadi Worker. The allegations made against the appellant was that her husband's brother was the Panchayat Karmi/Secretary of Panchayat. Firstly, the said relation is not under the prohibited degree and secondly a Panchayat Karmi or a Secretary of the Gram Panchayat had nothing to do with the selection of Anganwadi Worker. The process of selection as prescribed makes it clear that the Committee is to be constituted under the chairmanship of Sub Divisional Officer of which the Child Development Project Officer is the Secretary. The Chief Executive Officer of a Janpad Panchayat the President of the Health and Women Child Development Committee and one of the member nominated by the Janpad Panchayat are the member of such a Committee. If selection is made, another Committee is constituted to decide the objections with respect to the preliminary Selection which consists of Chief Executive Officer of Zila Panchayat as President and District Programme Officer, Child Development Officer, President of the Health and Women and Child Development Committee of Zila Panchayat and one of the Woman member nominated by the Zila Panchayat as member of the said Committee. 13. The objection was raised with respect to the selection of appellant by the respondent No. 5, which was decided by the said Committee and thereafter the appointment of appellant was made. In all such proceedings, a Secretary of the Gram Panchayat had no role to play and, therefore, such an objection raised by the respondent No. 5 with respect to the selection of the appellant on the post was rightly rejected. If these aspects are taken into consideration, in fact, the learned Additional Collector has giver, the reasoned findings in his order passed on 27-12-2007 and has rejected such contention of the respondent No. 5 in appropriate manner. However, while interfering in such findings recorded by the learned Additional Collector, the Additional Commissioner passed the impugned order dated 18-9-2008 without appreciating all these facts. No reasons were assigned as to how the findings recorded by the additional Collector were not justified. These aspects were not rightly considered by the learned Single Judge and findings were given that the order passed by the Additional Commissioner was not to be interfered. 14. No reasons were assigned as to how the findings recorded by the additional Collector were not justified. These aspects were not rightly considered by the learned Single Judge and findings were given that the order passed by the Additional Commissioner was not to be interfered. 14. In our considered opinion, if these aspects are taken into consideration, it was to be held that there was no occasion for the Additional Commissioner to interfere in a reasoned order of Additional Collector and the second appeal of respondent No. 5 was not to be allowed. However, since these aspects have not been taken into consideration by the seamed Single Judge and the writ petition of the appellant has been dismissed, we are afraid, we are not in a position to affirm the order of the learned Single Judge. Consequently, this writ appeal is allowed. The order passed in Writ Petition No. 11983/2008(8) on 12-8-2011 is hereby set aside. The order passed by the Additional Commissioner in Case No. 679/Appeal/89/07-08 dated 18-9-2008 is hereby quashed and the order passed by the additional Collector in Appeal No. 04/Appeal/B 121/2007-2008 dated 27-12-2007 is affirmed. The appellant be continued on the post of Anganwadi Worker at the present place of posting. 15. The writ appeal is allowed to the extent indicated hereinabove. There shall be no order as to costs. Appeal allowed.