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Madhya Pradesh High Court · body

2016 DIGILAW 570 (MP)

Roshini Jain v. Additional Commissioner

2016-07-16

VIVEK AGARWAL

body2016
ORDER 1. Petitioner has filed this petition being aggrieved by order dated 15.1.2014, Annexure P-1, passed by the Additional Commissioner, Gwalior Division, Gwalior, vide which the Additional Commissioner dismissed the appeal filed by the present petitioner against the order passed by the Collector, Shivpuri, on 8.1.2013 as is contained in Annexure P-8. 2. The brief facts leading to the present petition are that in the year 2008 an advertisement was issued for appointment of Samvida Shala Shikshak Grade III and both the petitioner and private respondent No.4 were candidates to the said selection. Certain facts which are not in dispute are that in terms of the said advertisement, which was issued in terms of the provisions contained in M.P. Panchayat Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005 (in short “the Rules of 2005”) vacancies were notified and certain persons upto serial No.74 were granted appointment. Name of respondent No.4 was at serial No.75 and she had secured 27.04 marks. Name of the present petitioner was at serial No.86 and she had also secured 27.04 marks. It is apparent from such list of Samvida Shala Shikshak Grade III unreserved (woman) for the year 2007 that several persons from serial No.69 to 86 had secured 27.04 marks and their names were arranged in the order of their date of birth i.e. the person who is elder was placed higher in rank than the person who is younger. It is the contention of the petitioner that as none of the candidates from serial No.75 to 85 turned up, appointment order was issued in her favour in the year 2008 and she continuously worked on the post of Samvida Shala Shikshak Grade III till 2011 when respondent No.4 raised an objection to the appointment of present petitioner. It is also not in dispute that present petitioner is continuing to work as Samvida Shala Shikshak Grade III in terms of the interim order passed by this Court. 3. Petitioner has raised objection to the order of the Collector and Additional Commissioner mainly on the ground that in terms of the scheme of appointment under the Rules of 2005, a procedure has been laid down for notifying the vacancies and carrying out appointment. 3. Petitioner has raised objection to the order of the Collector and Additional Commissioner mainly on the ground that in terms of the scheme of appointment under the Rules of 2005, a procedure has been laid down for notifying the vacancies and carrying out appointment. It is pointed out that in rule 6(8), it is provided that the concerned Panchayat will issue a notification inviting applications for the vacant post of Samvida Shala Shikshak and the said notification will be published at the local and divisional level at least in one popular newspaper. The terms and conditions of the appointment, age, educational qualification and other qualifications and disqualifications will be as are provided in schedule 2 of the Rules of 2005. 4. Rule 6 (9)(a)(b) and (c) of the Rules of 2005 provides how selection will be made and rule 6(9)(d) says that if in each category two persons secure equal marks, then in the final selection, the person who is senior in age will be given priority. Sub-rule (10) to rule 6 provides that how provisional selection list will be prepared and sub-rule (11) to rule 6 provides for publication of provisional and final select list at the notice board of the concerned Panchayat and offices of District Education Officer and Assistant Commissioner Tribal Welfare Department. Clause (3) of sub-rule (11) to rule 6 provides that any candidate can file objections, if any, within ten days of publication of such provisional and final select list to the Collector and the Collector shall within two working days of receipt of such objections refer the matter to the appellate committee mentioned in column No.6 of schedule 2. The said appellate Committee is required to decide the objection received from the Collector within a period of 15 days after giving reasonable opportunity of hearing to the objectors. It is further mentioned that by giving reasons in writing such period of taking decision on the objections can be increased by 5 days and if the appellate committee fails to take a decision in such matter within 20 days, then such objections shall be decided by the Collector. 5. Learned counsel for respondent No.4 submits that respondent No.4 was not aware about the publication of final merit list, and therefore, she could not submit her objection in time. 5. Learned counsel for respondent No.4 submits that respondent No.4 was not aware about the publication of final merit list, and therefore, she could not submit her objection in time. Learned counsel for respondent No.3 has filed a return and has submitted that the husband of respondent No.4 was also a candidate to the selection and he was aware of the procedure as prescribed in the Rules, and therefore, it cannot be said that respondent No.4 was deprived of an opportunity to raise objections in terms of the Rules of 2005 in time. In fact, she was missing from her house for the period from 20.12.2007 to 8.4.2008 and husband of respondent No.4 had lodged an FIR about her missing. She was subsequently searched by the police at Bhopal and handed over to her father. Respondent No.3 has also enclosed copy of the notices which were dispatched for participating in the counselling as are contained in Annexure R-3/2 collectively along with copy of postal receipt contained in Annexure R-3/3. Learned counsel for respondent No.3 has also produced copy of communication dated 11.6.2012 made by the Chief Executive Officer, Janpaid Panchayat, Pichhore, to the Collector, Shivpuri, in which he has categorically mentioned that on the date of counselling respondent No.4 was absent. This is one fact which has not been disputed by the learned counsel for respondent No.4, but she submits that she could not appear for the counselling as there was no communication for appearing before the said committee. Learned counsel has also mentioned that FIR was lodged at police Station, Amola, regarding her missing and it has come on record that during the period of counselling respondent No.4 was not staying at the residence of her husband. Giving all these details, it has been submitted by learned counsel for respondent No.3 that as none of the candidates whose names are mentioned from serial No.75 to 85 appeared in the counselling, therefore, the present petitioner was given appointment. It is also submitted that candidates whose names appear from serial No.76 to 85 have yet not raised any objection to the appointment of the present petitioner and it is only respondent No.4 who had approached the Court belatedly in the year 2011 without giving any justification for not raising any objection to the provisional or final selection list. 6. It is also submitted that candidates whose names appear from serial No.76 to 85 have yet not raised any objection to the appointment of the present petitioner and it is only respondent No.4 who had approached the Court belatedly in the year 2011 without giving any justification for not raising any objection to the provisional or final selection list. 6. It is seen that under the scheme of the Rules of 2005 it is apparent that a person has a right to object to the provisional selection list within a prescribed time which needs to be displayed only on the notice board. Till this point of time, there is no dispute that respondent No.4 did not raise any dispute about the provisional merit list. Even as per the provisions of the rules, final selection list is to be displayed only on the notice board. No dispute was raised by respondent No.4 to the said final selection list. As per the provisions contained in clause six of sub-rule (11) of rule 6, the validity of the final list is only one year. None of the authorities i.e. Collector and the Additional Commissioner have adverted to this important statutory provision contained in the Rules that how the objection raised by respondent No.4 could be entertained after the expiry of validity of selection list. It is an admitted position that respondent No.4 had not raised any objection either at time of publication of provisional merit list or at the time of publication of final selection list or even within one year of publication of final selection list. Once the final selection list attained finality, the right of the parties to challenge the said final selection list could not have been reopened in the name of deciding the representation or appeal filed by respondent No.4. In fact, it is apparent from the order Annexure P-5 passed in Writ Petition No.4048/2011 on 6.2.2012 that this Court had categorically disposed of the writ petition with a short direction that petitioner shall submit an appeal against the order Annexure P-1 before the competent authority along with the application for condonation of delay. In fact, it is apparent from the order Annexure P-5 passed in Writ Petition No.4048/2011 on 6.2.2012 that this Court had categorically disposed of the writ petition with a short direction that petitioner shall submit an appeal against the order Annexure P-1 before the competent authority along with the application for condonation of delay. Once a direction was given to file an appeal along with the application for condonation of delay, the authority of Collector was required to deal with the application for condonation of delay on its own merits and the observation in the order that competent authority shall decide the same on merits within a period of eight weeks from the date of filing of the appeal and shall not dismiss the appeal on the ground of delay could not have been construed to mean that delay was condoned by this Court. If delay would have been condoned by this Court, then this Court would not have directed for submission of an application for condonation of delay and deciding the same after giving opportunity of hearing to respondent No.4 i.e. the present petitioner. Thus, there is an inherent contradiction in the order dated 6.2.2012 which was either required to be clarified by the Collector or was required to be understood by the Collector in correct legal perspective inasmuch as on the one hand this Court directed respondent No.4 to the present petition to file an application for condonation of delay and on the other, observed that appeal shall not be dismissed on the ground of delay. This inherent contradiction was never clarified and the Collector on his own without adverting to the provisions contained in the Rules of 2005 condoned the delay and ordered for enquiry in the hands of Chief Executive Officer to the factum of appointment of present petitioner overlooking the fact that persons whose names are mentioned in the final selection list from serial No.76 to 85 were neither present before the Collector, nor they were party before the High Court, nor any notice was issued to them as they had never objected to the final selection list issued by the Chief Executive Officer of the Janpad Panchayat. Thus, the Collector has clearly exceeded his brief. Thus, the Collector has clearly exceeded his brief. In fact what Collector was required to decide was whether there was a cogent reason for respondent No.4 Smt. Vandana Gupta to not appear before the appellate committee and whether the application could have been entertained at the behest of Smt. Vandana after lapse of more than 3 years of finalization of final selection list, but without adverting to the provision of the Rules of 2005 and these issues which the Collector was required to decide because Collector has been bestowed an authority under the Rules of 2005, he allowed the application. In fact, he should have taken the objections and referred them to the appellate committee as is provided under clause 3 of sub-rule (11) to rule 6, but the Collector instead of adhering to the statutory rules, decided the appeal on his own and that too without deciding the issue of maintainability of objection after expiry of the validity of final section list. It appears that the Collector has construed the order of this Court to be an order directing him to allow the appeal in favour of respondent No.4 and proceeded on certain assumptions which are not permissible under the Rules to decide the appeal, and therefore, the Collector has faulted in not adverting to the issue of condonation of delay and passing an order without having regard to the Rules of 2005. When the present petitioner filed appeal before the learned Additional Commissioner, then learned Additional Commissioner also without adverting to any of the provisions contained in the Rules of 2005 decided the appeal only on hypothetical ground that there was no material available on record to show that on what basis the present petitioner was given appointment. There was sufficient material available on record before the Collector and the Additional Commissioner to demonstrate that undisputedly the present petitioner had also secured the same marks as were secured by respondent No.4 and the candidates whose names appeared from serial No.76 to 85. It is also true that publication of final selection list does not cast a responsibility on the selected candidates to join and stake claim on the post merely because they have been selected. Thus, selection gives an opportunity to approach, participate in the counselling and stake their claims in terms of the provisions contained in the Rules of 2005. It is also true that publication of final selection list does not cast a responsibility on the selected candidates to join and stake claim on the post merely because they have been selected. Thus, selection gives an opportunity to approach, participate in the counselling and stake their claims in terms of the provisions contained in the Rules of 2005. If the persons whose names appear from serial No.76 to 85 did not stake their claim and did not appear before the Court of the Collector and the Additional Commissioner, then no fault could have been attributed to the candidature of the present petitioner. It was not the case of respondent No.4 that these persons were deliberately kept away from the selection at the behest of present petitioner. 7. In absence of any such allegation and rebuttal about the facts pleaded in the return of respondent No.3 that an FIR was lodged by husband of respondent No.4 in regard to her missing and also the fact that respondent No.4 never approached the concerned authority within the validity of final selection list i.e. within one year from the date of its publication and also in the light of the fact that respondent No.4 has not disclosed unambiguously that what prompted her to approach this Court in the year 2011, therefore, merely saying that when she gathered information about selection of the present petitioner, who secured equal marks and is younger in age, she approached the authorities, is not sufficient to prove her bonafides. 8. At this point of time, learned counsel for respondent No.4 has relied on the decision in the case of Ashok Kumar Gupta and another v. State of M.P. and others, reported in 2002(2) Vidhi Bhasvar 288= 2002(2) MPLJ 616 , wherein this Court has held that denial of 5% marks to the petitioner is contrary to the provisions of Niyam 2001. Thus, it is apparent that a factual aspect has been considered and dealt with in the case of Ashok Kumar (supra). In the present case, there is no dispute about the fact that petitioner had secured equal marks as were secured by respondent No.4. Thus, it is apparent that a factual aspect has been considered and dealt with in the case of Ashok Kumar (supra). In the present case, there is no dispute about the fact that petitioner had secured equal marks as were secured by respondent No.4. There is no denying to the fact that respondent No.4 is senior to the petitioner in age, and therefore, as there is no dispute about the factual aspect of the case, the ratio of the case of Ashok Kumar (supra), is not applicable to the facts and circumstances of the present case. 9. The Hon’ble Supreme Court in the case of Buddhi Nath Chaudhary and others v. Abahi Kumar and others [ (2001)3 SCC 328 ], has held that appointment made long back pursuant to a selection need not to be disturbed. In the present case, petitioner was selected in the year 2008 and has been working continuously since then. For the first time challenge was made to the appointment of the petitioner in the year 2011. Now in the year 2016 upsetting the said position will be against the ratio of the law laid down in the case of Buddhi Nath Chaudhary (supra). 10. In the case of Union of India and others v. B. Valluvan and others, reported in (2006)8 SCC 686 , the Hon’ble Supreme Court has held that period of operation of panel is governed by rules. Generally it is for one year. It can be extended only by the State and not by the Court. Panel gets exhausted after all the vacancies are filled up. It cannot thereafter be kept alive for filling future vacancies. In view of this fact that life of panel in terms of selection had expired, challenge to the same by respondent No.4 before the Collector was not only stale but not maintainable. 11. As has been discussed above, as both the authorities i.e. the Collector, Shivpuri, and Additional Commissioner, Gwalior, have failed to adhere to the provisions contained in the Rules of 2005 and have taken cognizance of the objections to reopen the case after expiry of validity of final list, petition succeeds and is allowed. Annexure P-1 dated 15.1.2014 and P-8 dated 8.1.2013 are quashed. Parties to bear their own costs.