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Madhya Pradesh High Court · body

2014 DIGILAW 1511 (MP)

Vivek Khare v. State of M. P.

2014-11-21

K.K.TRIVEDI

body2014
JUDGMENT : K.K. Trivedi, J. 1. This order will also govern disposal of W.P. No.13194/2004-Ku. Reena Rai and others vs. Commissioner, Sagar Division, Sagar and others, WPS No.4863/2005-Om Prakash Richariya v. The State of M.P. and others and WPS No.4868/2005-Pramod Kumar Agrawal v. The State of M.P. and others. 2. In the group of these cases, main challenge is to the order dated 12.11.2002 said to be passed in an appeal by the Collector, District Tikamgarh filed by one Ku. Bharti Nayak, the respondent No.5, in the present writ petition. The said order was called in question in a revision before the Additional Commissioner, Sagar Division, Sagar, but since the said revision was dismissed vide order dated 29.11.2004, therefore, the writ petition is filed by all the petitioners. Since the issue involved in the present writ petition is same as has been raised in the other companion writ petitioners, all the matters were heard together and are being disposed of by this order. However, for the convenience and for the purposes of order, the facts are taken from Writ Petition (s) No.13173/2004. 3. The State Government has made the rules known as Madhya Pradesh Panchayat Contract School Teacher (Appointment and Service Conditions) Rules, 2001 (hereinafter referred to as 'the Rules'). The manner of making recruitment of contract teacher is prescribed under of the Rules. There are three categories of contract teachers to be appointed as Grade-I, II and III respectively. Schedule-2 of the Rules prescribes manner of constituting the selection committee for conducting interviews and selection of the contract teachers. For the post of contract teacher Grade II a committee at Janpad Panchayat level is to be constituted under the chairmanship of President of General Administration Committee of the Janpad Panchayat concerned. The Chief Executive Officer of the said Janpad Panchayat and the Block Education Officer of the said block are the other two members of the said committee. The General Administration Committee is to nominate subject experts and one of them is required to be woman. The members of the General Administration Committee are required to be added in the said committee. If more than 5 posts are advertised, at least one member from the minority community is to be nominated by the Collector, in case such a member is not available in the General Administration Committee. 4. The reservation is also prescribed under Rule 5 of the Rules. If more than 5 posts are advertised, at least one member from the minority community is to be nominated by the Collector, in case such a member is not available in the General Administration Committee. 4. The reservation is also prescribed under Rule 5 of the Rules. The scrutiny of the applications is required to be done by assigning the marks for the qualification giving weightage of teaching experience and ultimately a select list is required to be prepared. Out of the said select list, in terms of the availability of the vacancy in particular group, appointments are required to be made. 5. It so happened that there were certain vacancies available in Tikamgarh District and, therefore, advertisement inviting applications was issued. All the petitioners were the candidates for such selection and their respective applications were received by Janpad Panchayat, Tikamgarh. According to breakup of the vacancies available, in Annexure P/2, the reservation was shown for the scheduled castes, scheduled tribes, other backward classes and general category candidates. There was horizontal reservation as well for the post, which was for woman candidates and handicapped candidates. It is the case of the petitioners that they made the applications alongwith the requisite documents, which applications were considered, a select list was prepared and the orders of appointment were issued to the persons like petitioners. The said appointments were called in question in an appeal filed before the Collector, Tikamgarh by the respondent No.5 and though the persons like petitioners were named in the said appeal, yet opportunity of hearing was not extended to the petitioners. Only because some record was produced by the Chief Executive Officer of Jila Panchayat, the said record was perused and the order was passed by the Collector setting aside the appointments of the petitioners. The revision preferred against the said order of Collector was dismissed by the Additional commissioner. Hence, this writ petition is required to be filed. Much or less, similar is the claim made by the petitioners in other companion writ petitions. 6. Upon service of notice of writ petition, respondents were called upon to file return. However, no return whatsoever has been filed by the respondents in the present writ petition or in any companion writ petitions. Again opportunity was granted to the respondents to file return, but no return whatsoever was filed. 6. Upon service of notice of writ petition, respondents were called upon to file return. However, no return whatsoever has been filed by the respondents in the present writ petition or in any companion writ petitions. Again opportunity was granted to the respondents to file return, but no return whatsoever was filed. While entertaining the writ petition this Court has granted an interim stay on 17.12.2004, which order has remained in operation till now. 7. It is contended by learned counsel appearing for the petitioners that in terms of the provisions of new rules, which have been made applicable, the persons like petitioners have already been absorbed on the post of Adhyapak and are still continuing in service by virtue of interim order passed by this Court. Therefore, the writ petition may be allowed. 8. The core issue, which is to be considered by this Court, is whether the selection of the petitioners, as was done, could be said to be violative of the statutory rules, as has been held by the Collector in his order. As no record has been produced before this Court to demonstrate how the selection was made, this Court is required to go by the facts recorded in the order passed by the Collector and as have been averred in the writ petitions. 9. The first and foremost question would be whether the selection committee was constituted in the manner indicated in the Rules or not and whether non-inclusion of one or other member in the selection committee could have vitiated the entire selection? From perusal of the Rules it is clear that the select committee was to be constituted in similar manner for the selection of candidates for appointment on the post of contract teacher Grade II and III. With a slight variation of the chairmanship, even the procedure for selection of candidates for appointment on the post of contract teacher Grade-I is also the same except that the Chairman of the said committee is the President of the General Administration Committee of Jila Panchayat and that the Chief Executive Officer of Jila Panchayat and District Education Officer of the District concerned are to be added as members. It is not the case of the respondents or even a finding recorded by the Collector that in the committee the experts were not nominated. It is not the case of the respondents or even a finding recorded by the Collector that in the committee the experts were not nominated. It is also not a finding recorded by the Collector that the Committee was not in terms of the provisions of the Rules. If a committee was constituted on 12.6.2001 and one of the members of the General Administration Committee was not present in that, as is held that his name was not included in the list of members present, how the complete constitution of the committee would be vitiated. It is also not the finding recorded that members of the said committee have not properly awarded the marks to the candidates. Reservation of posts was indicated in the advertisement itself and, therefore, there was no question of holding that the instructions issued by the State Government in General Administration Department were not followed in the matter of prescribing reservation. In a case where the reservation is done, vertically and horizontally both, first the vertical reservation is required to be done and then horizontal reservation will indicate number of posts in the reserved category, specifically given to a particular reserved class like woman candidates and handicapped persons. Subject-wise also, posts are to be taken note of and, therefore, if that exercise was done by the selection committee in this manner, how could it be said that the selection was not proper. 10. Now the issue is to be looked into from the angle whether at any point of time opportunity of hearing was extended to the petitioners. The Collector, while holding that the entire selection was vitiated, had not thought it better to extend an opportunity of hearing to the selected candidates, who were already given the order of appointment. In several cases this aspect has been tested. Only in such cases where it has been found that the entire process of selection was vitiated being de hors the rules or the law, the Apex Court has held that the observation of rules of natural justice is not necessary. In the case of State of M.P. and others vs. Shyama Pardhi : AIR 1996 SC 2219 this aspect has been very categorically dealt with. In the case of State of M.P. and others vs. Shyama Pardhi : AIR 1996 SC 2219 this aspect has been very categorically dealt with. However, as has been pointed out, a definite finding in respect to the constitution of selection committee has not been recorded by the Collector and, therefore, the analogy of law laid down by the Apex Court in the aforesaid case would not be attracted. On the other hand, if these aspects are examined, in light of the law laid down by the Apex Court in the case of Basudeo Tiwary v. Sido Kanhu University and others : AIR 1998 SC 3261 it would be abundantly clear that in such cases opportunity of hearing should have been given as the candidate so selected and appointed can still point out what was the scoring marks and the qualification available to the said candidates, for their inclusion in the select list. In absence of such opportunity of hearing, it goes without saying, that the civil right accrued to persons like petitioners to serve on contract appointment was snatched away in illegal manner. That being so, the findings recorded by the Collector cannot be affirmed. 11. The situation, as has been pointed out by the learned counsel for the petitioners that all the petitioners since were granted interim relief by this Court have remained in employment and in changed circumstances now have been absorbed and regularized as Adhyapak, it would be unjustified to throw them out of the employment, that too on account of such proceedings where findings after a detailed enquiry were not properly recorded by the Collector of the District. However, at the same time, ineligible candidate, if any, has been given appointment because of certain lapses of the selection committee, that aspect is not to be ignored and such persons are not to be allowed to remain in the employment, how long have they remained in the employment under the interim protection of this Court. 12. In view of the aforesaid, while setting aside the order impugned passed by the Collector, it would be appropriate to direct the authorities to conduct an enquiry afresh in the matter and to evaluate the records of selection after affording an opportunity of hearing to all the petitioners and to record a finding in that respect. 13. On the analysis made hereinabove, the writ petition is allowed. 13. On the analysis made hereinabove, the writ petition is allowed. The impugned order dated 12.11.2002 is hereby quashed. The matter is remitted back to the Collector, Tikamgarh for conducting an enquiry afresh after affording an opportunity of hearing to the petitioners and pass a fresh order in the matter of appointment. In case the petitioners are found fit and rightfully selected candidates, they will be entitled to all the benefits of such appointment. However, in case of those candidates who were ineligible and are found to be illegally appointed, their initial order of appointment would be set aside and all the benefits extended to them would come to an end. 14. The writ petitions are allowed to the extent indicated hereinabove. There shall be no order as to costs.