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Madhya Pradesh High Court · body

2013 DIGILAW 636 (MP)

Manoj Singh Tomar v. State of M. P.

2013-05-14

Sujoy Paul

body2013
ORDER 1. In this writ petition filed under Article 226 of the Constitution, petitioner has prayed for setting aside of Annexure-P/1, whereby petitioner has not been given permission to participate in the selection in transport department on the post of Constable. A direction is prayed for to direct the respondents to assign said permission to enable the petitioner to participate in the selection and if selected, get appointment on the post of Constable in transport department. Brief facts:- 2. Petitioner was appointed as a Constable No. 1433 in the police department pursuant to his selection in the year 2002 by appointment order dated 15.11.2012. The transport department decided to recruit the constable by open selection through Professional Examination Board. Applications were invited for the post of “Constable Transport”, which is a class-III post to be filled by direct recruitment. An advertisement was published in the newspapers, pursuant to which petitioner had submitted his candidature to participate in open selection process as initiated by transport department through Professional Examination Board. The advertisement is filed an Annexure- P/2. After receiving application form from the petitioner, examination board was allotted roll number to the petitioner. Petitioner participated in the selection and in the written examination, he secured 99th position in the merit list. A call letter for scrutiny of original records was issued to the petitioner by the board. 3. Petitioner preferred the application/candidature through proper channel and preferred an application in this regard through respondent No.5-S.P., Gwalior (Annexure- P/5). Before participation in the selection or thereafter and before issuance of impugned order Annexure-P/1, petitioner was never informed about any action being taken on Annexure-P/5. Petitioner made a request for issuance of no objection certificate from Police Department. The respondents after a considerable long time, issued the impugned order Annexure-P/1. In the said order, it is stated that pursuant to General Administration Department (G.A.D.) circular dated 21.10.1980, petitioner’s application is rejected because the said circular prohibits and does not give permission to submit candidature for the equivalent/same post. This order Annexure-P/1 is called in question in this petition. 4. Shri D.P. Singh learned counsel for the petitioner assailed this order on the following grounds:- 1) The Constables of Police Department, who are similarly situated qua the present petitioner, submitted their candidature statewide. In other districts, the permission is accorded to the similarly situated persons. This order Annexure-P/1 is called in question in this petition. 4. Shri D.P. Singh learned counsel for the petitioner assailed this order on the following grounds:- 1) The Constables of Police Department, who are similarly situated qua the present petitioner, submitted their candidature statewide. In other districts, the permission is accorded to the similarly situated persons. Reliance is placed on Annexure-P/6 and other documents filed at pages No. 42, 43, 44, 45 and 46 with the W.P. A citizen has a right to decide about his occupation/employment. There is no reasonable cause shown to deny such permission. Petitioner is subjected to discrimination qua similarly situated persons of other districts, which hits Article 14 of the Constitution. The G.D.A.’s circular dated 21.10.1980 has no application in the present matter. Even otherwise, the said circular cannot come in the way of the petitioner to prefer candidature and secure employment of his choice. 5. Shri Newaskar learned Dy. Government Advocate supported the order and relied on Annexure-R/1 dated 21.10.1980. The aforesaid circular of the G.A.D., on the strength of which, alone the rejection order Annexure-P/1 is passed. 6. I have heard learned counsel for the parties and perused the record. 7. The singular reason assigned for not granting permission to the petitioner is circular of G.D.A., dated 21/10/1980 (Annexure-R/1). A minute reading of this circular shows that a decision was taken by the State Government regarding the applications of Class-III employees (non-ministerial) which can be forwarded for securing employment in other department of the State Government on carrying higher pay-scale. Secondly, the applications of class-III ministerial employees can be forwarded for securing employment in other departments of State Government carrying higher pay-scale. However, this circular only deals with forwarding of letter and does not deal with any kind of permission in any case. It cannot be forgotten that as per Article 19(1)(g), it is a fundamental right of a citizen to practice any profession or to carry on any occupation, trade or business. The word occupation has a wide meaning, it includes an employment. The word “occupation” is dealt with by Supreme Court in the case of TMA Pai Foundation and others v. State of Karnata and others [ (2002) 8 SCC 481 ], which reads as under:- “25.... “Occupation” would be an activity of a person undertaken as a means of livelihood or a mission in life. The word “occupation” is dealt with by Supreme Court in the case of TMA Pai Foundation and others v. State of Karnata and others [ (2002) 8 SCC 481 ], which reads as under:- “25.... “Occupation” would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh case correctly interpret the expression “occupation” in Article 19(1)(g)” 8. In my opinion, whether or not G.A.D.’s circular dated 21.10.1980 is applicable, the fact remains that petitioner has a fundamental right to submit his candidature for another employment. It is the right of a citizen to decide where he would like to practice any particular profession or get himself engaged any kind of occupation. The said right can be curtailed only as per Article 19(6). Thus, reasonable restrictions, which are in consonance with Article 19(6) can be pressed into service, but no other condition which is not in consonance with “reasonable restrictions” can take away the fundamental right of a citizen to opt for any other profession or occupation. If the G.A.D.’s order is tested on the aforesaid anvil, it will be crystal clear that merely because the employment is sought for in another department for equivalent post, it cannot be denied and such denial on the aforesaid ground, by no stretch of imagination can be said to be a reasonable restriction. The Supreme Court in State of Bihar and others v. Project Uchcha Vidya, Sikshak Sangh and others [ (2006) 2 SCC 545 ] opined as under:- “69.... A citizen cannot be deprived of the said right except in accordance with law. The requirement of law for the purpose of clause (6) of Article 19 of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution or otherwise. Such a law, it is trite, must be one enacted by the Legislature”. 9. Accordingly, in my opinion, Annexure-R/1 cannot be an impediment for the petitioner to get employment. This Court on 01.11.2012 passed an interim order directing the respondents to permit the petitioner to participate in the selection. Pursuant to the said order, the petitioner was permitted to participate in the selection. 9. Accordingly, in my opinion, Annexure-R/1 cannot be an impediment for the petitioner to get employment. This Court on 01.11.2012 passed an interim order directing the respondents to permit the petitioner to participate in the selection. Pursuant to the said order, the petitioner was permitted to participate in the selection. Apart from this, there is no justification in the action of respondent No.5 in rejecting the case of the petitioner whereas in other districts of the same State, for the same selection, similarly situated persons were permitted to participate in the selection. This is clearly discriminately in nature and hits Article 14 of the Constitution. 10. On the basis of aforesaid analysis, the result is inevitable. Impugned order is illegal and unconstitutional in nature, it cannot be permitted to stand in judicial scrutiny. 11. Resultantly, the order dated 7.7.2012 with regard to the petitioner is set aside. The respondents are directed to forward the application/candidature of petitioner and permit him to enjoy the fruits of selection. Petition is allowed. No costs.