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Madhya Pradesh High Court · body

2014 DIGILAW 1626 (MP)

Gargi Sharma v. State of M. P.

2014-12-09

SUJOY PAUL

body2014
ORDER 1. The petitioner, a general category candidate who submitted her candidature for the post of Patwari and whose name is removed from the select list, has invoked the jurisdiction of this Court under Article 226 of the Constitution. 2. The respondents issued an advertisement to fill up the posts of Patwari. It is contended by the petitioner that the instant recruitment was pursuant to advertisement No.1653/Bhu.Abhi./Pat.-Pariksha/2004, which was amended by notice dated 5.12.2004 (filed with IA No. 6570/06). It is contended that the posts were reserved amongst General, OBC and SC. The petitioner along with other eligible candidates submitted her candidature. The petitioner was required to participate in the written examination. She appeared in the written examination and thereafter a select list was issued on the basis of merits of the candidates. The select list (Annexure P/3) shows the name of petitioner in the general category (woman). The petitioner has secured 56 marks. However, subsequently the respondents issued the order, Annexure P-1, and modified the earlier order, Annexure P-3. In the list of general category (woman), the petitioner's name was deleted and name of Sadhna Gupta was inserted. Criticizing this order, it is contended by Shri Devendra Sharma that there is no provision of reserving the post for general category (male). The respondents have erred in dividing the list of general category amongst male and female candidates. Sadhana Gupta secured sufficient marks to get a position in the main general category list and, therefore, insertion of her name in the female category, which resulted into ousting of petitioner's name, is impermissible. 3. Prayer is opposed by Shri Pravin Newaskar, learned Deputy Government Advocate. 4. I have heard learned counsel for the parties and perused the record. 5. It is seen that this Court on 12.12.2005 directed the State to file the advertisement and show the rules, according to which separate lists of male and female candidates for general category were prepared. The record shows that on various occasions this Court directed to comply with the order dated 12.12.2005. The said order was not complied with. Additional return was not filed. On 8.5.2006 again this Court directed to comply with the earlier order dated 12.12.2005, failing which the Officer Incharge/S.D.O., Revenue Datia was directed to remain present. To my surprise, this order was also not complied. The Court, therefore, listed the matter for final hearing. 6. The said order was not complied with. Additional return was not filed. On 8.5.2006 again this Court directed to comply with the earlier order dated 12.12.2005, failing which the Officer Incharge/S.D.O., Revenue Datia was directed to remain present. To my surprise, this order was also not complied. The Court, therefore, listed the matter for final hearing. 6. The respondents, who were custodian of record, have miserably failed to obey the order of this Court. They should have filed the actual advertisement, pursuant to which recruitment process began. They should have also filed the enabling provision/rule which allegedly permits them to bifurcate the select list of general category amongst male and female. Since despite opportunities they have failed to file the same, I deem it proper to draw adverse inference against the respondents. It is, therefore, held that the respondents have not filed the said document deliberately. If they would have filed the same, it would have been against their stand and, therefore, same was not filed. However, this is not a happy situation. The State cannot defend the cases in this manner. Accordingly, in my view, the respondents should take action against the erring officials, who have failed to obey the Court's order and did not produce the relevant rule/document before this Court. 7. Coming to the merits of the matter, it is seen that name of Sadhana Gupta is mentioned in select list, Annexure P-3. She has secured 86 marks. However, her name is mentioned in the list of general category (male). The respondents have failed to show that list of general category can be bifurcated amongst male and female. More so, when the amended advertisement aforesaid does not indicate that any post was earmarked for general woman category. This is also settled in law that if a reserve category candidate secures better merit position qua a general category candidate, he/she will secure the position in the general merit. The marks of Sadhana Gupta are more than various other general category male candidates. Thus, there is no justification in either bifurcating the list amongst male and female candidates in general category nor there exists any justification in removing the name of Sadhana Gupta and inserting her name in woman category because she had secured more marks than various general male candidates. Thus, there is no justification in either bifurcating the list amongst male and female candidates in general category nor there exists any justification in removing the name of Sadhana Gupta and inserting her name in woman category because she had secured more marks than various general male candidates. It is also clear that insertion of Sadhana Gupta's name in woman list resulted into ousting of the petitioner. This is clearly impermissible and respondents have not shown any justifiable reason for the same except saying that insertion of Sadhana Gupta's name in the first list (Annexure P/3) was a typing error. The respondents were required to show as to how they have prepared two lists of male and female in general category. 8. A Division Bench of this Court in 2006(III) MPWN 110 = 2006 (3) MPHT 477 (Hemraj Rana v. State of M.P. and another), opined that “if a person belonging to any of the categories mentioned in sub-section (2) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (2). The language of the said sub-section (4) of section 4 of the Adhiniyam of 1994 makes it clear that if a person belonging to any of the reserved categories gets 'selected' on the basis of merit in an open competition with the general candidates, he shall be adjusted against the vacancies meant for general candidates. The word 'selected' clearly indicates that sub-section (4) of section 4 of the Adhiniyam of 1994 will apply only at the time of final selection of candidates and not at the time of preliminary examination.” The said judgment was followed by this Court in 2010(2) JLJ 176 = 2010 (3) MPHT 423 (Padma Jatav v. State of MP and another). As per the said judgment, it is clear that the respondents have erred in ousting the name of the petitioner because of insertion of Sadhana Gupta. 9. It is also unfortunate that the respondents have not mentioned as to what is the cut of marks. Putting it differently, it is not shown as to what is the cut of marks for a general category candidate. Thus, it is not clear whether the petitioner has secured more marks than the last general category candidate. 10. 9. It is also unfortunate that the respondents have not mentioned as to what is the cut of marks. Putting it differently, it is not shown as to what is the cut of marks for a general category candidate. Thus, it is not clear whether the petitioner has secured more marks than the last general category candidate. 10. Resultantly, the action of the respondents in deleting the name of the petitioner from the select list (Annexure P/3) is disapproved. The respondents shall consider the case of the petitioner by treating her as a general category candidate. If any candidate of general category, who has secured same or less marks than the petitioner and is selected and appointed, the respondents shall issue appointment order in favour of the petitioner by notionally appointing the petitioner from the date her contemporaries/associates were appointed. If the petitioner has secured less marks than the last appointed general category candidate, no further action needs to be taken. It is made clear that if the petitioner is appointed on notional basis, she will be entitled to get notional fixation of pay from the date her contemporaries were appointed. She will not be entitled for arrears of pay from retrospective date. 11. Petition is allowed to the extent indicated above. No cost. Devendra Sharma for petitioner; Praveen Newaskar, Dy. Government Advocate for respondent/State.