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2016 DIGILAW 307 (MP)

Shivam Upadhyay v. State of M. P.

2016-04-18

A.M.KHANWILKAR, J.P.GUPTA

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ORDER 1. This appeal takes exception to the decision of the learned Single Judge dated 4.9.2015 in Writ Petition No.13761/2013. Learned Single Judge has adverted to the mandatory qualification specified in the advertisement to invite applications to the post of Gram Rojgar Sahayak. The mandatory eligibility condition stipulated in the advertisement required the applicant to furnish Voter Identity Card issued by the Election Commission of India. That was the condition precedent for substantiating the claim that the applicant was resident of the same Gram Panchayat area. Admittedly, the application submitted by the appellant in response to the said advertisement did not include the Voter Identity Card issued by the Election Commission of India, as has been found by the revisional Authority. 2. The moot question, therefore, was: whether the said condition could be treated as mandatory or it was open to the appellant to fulfill the requirement of being resident of the same Gram Panchayat area on the basis of other evidence? 3. The mandatory condition in the advertisement, however, explicitly called upon the applicant to furnish Voter Identity Card issued by the Election Commission of India. Clause (3) in the advertisement in that behalf may also be construed as essential requirement of being resident of the same Gram Panchayat area. The thrust of the said condition, however, is the Voter Identity Card issued by the Election Commission of India made as mandatory requirement. The appellant has not challenged the said condition specified in the advertisement before any authority or the writ petition as filed. So long as the said condition operates and being a mandatory condition of eligibility already notified, no relief can be granted to the appellant merely because the appellant is in a position to produce other official documentary evidence to substantiate the factum of being resident of the same Gram Panchayat area. 4. Counsel for the appellant was at pains to persuade us to take the view that the condition such as No.3 requiring the applicant to submit the Voter Identity Card issued by the Election Commission of India is contrary to the directions issued by the Central Government for not insisting on such condition. 5. As aforesaid, the appellant has not challenged the validity of the mandatory condition articulated in the advertisement, hence, this argument cannot take the matter any further for the appellant. 6. 5. As aforesaid, the appellant has not challenged the validity of the mandatory condition articulated in the advertisement, hence, this argument cannot take the matter any further for the appellant. 6. Counsel for the appellant would then rely on the decision of the Supreme Court in the case of Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board [ AIR 2016 SC 1098 ]. 7. This decision, in our opinion, will be of no avail to the appellant. The question of law that has been decided in the said case by the Supreme Court is: whether a candidate who appears in the examination under the OBC category and submits the certificate after the last date mentioned in the advertisement is eligible for selection to the post under OBC category or not. In the present case, however, the question is whether the mandatory condition such as condition No.3 notified in the advertisement for inviting applications from desirous candidates for being appointed to the post of Gram Rojgar Sahayak can be considered as mandatory or otherwise. The setting, in which, the condition is placed and has been so notified leaves no manner of doubt that it was made mandatory condition to the effect that the candidate must forward Voter Identity Card issued by the Election Commission of India along with the application, otherwise the application would be treated as incomplete and ineligible. Viewed thus, neither the subsequent decision by the Central Government or the judgment of the Supreme Court pressed into service, will come to the aid of the appellant. 8. Realizing this position, counsel for the appellant submits that the appellant be given liberty to approach the learned Single Judge by way of review petition. 9. In our opinion, however, the argument which has been canvased in the present appeal, cannot be the basis to permit review of the judgment as we have already dealt with those contentions in the present appeal. 10. Hence, the appeal is dismissed.