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Madhya Pradesh High Court · body

2016 DIGILAW 762 (MP)

Omprakash Singh Rathore v. State of M. P.

2016-08-31

SHEEL NAGU

body2016
ORDER 1. This matter was taken up under the category of “More than five years old cases”. The present petition under Article 226 of the Constitution of India assails the order dated 23.12.2009 contained in Annexure P-1 whereby the Collector, Morena has upheld the resolution dated 24.8.2009 of Gram Panchayat Pacher resolving to appoint the respondent No.4 as Panchayat Karmi at Gram Panchayat Pacher, Janpad Panchayat Sabalgarh, District Morena. Undisputed facts : 2. Learned counsel for the rival parties are heard. 3. The present case involves chequered history and therefore the same is detailed below in tabular form in chronological order. Dates Events 24.5.2006 Advertisement calling applications to fill up post of Panchayat Karmi at Gram Panchayat-Pacher. 20.6.2006 One Jaivendra Singh is appointed as Panchayatkarmi of Gram Panchayat in question. Immediately thereafter Canceling the appointment of Jaivendra Singh as Panchayat Karmi of Gram  Panchayat Sandeep Dohare is appointed on the said post because of criminal antecedents of Jaivendra Singh. 18.7.2006 Sandeep Dohare is bestowed with Secretarial Power under section 69(1) of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (Panchayat Raj Adhiniyam for brevity). Thereafter Jaivendra Singh being aggrieved preferred appeal before Additional Commissioner, Chambal Division, Morena. Simultaneously Another appeal was also preferred by one Asha Kushwah respondent No.4 herein. 20.6.2007 Both the appeals of Jaivendra Singh and respondent No.4 are decided holding the order dated 26.7.2006 to be unlawful and respondent No.4 being more meritorious than Jaivendra Singh, is appointed as Panchayat Karmi Writ Petition No.3960/2007 Preferred by Sandeep Dohare against orderof the Additional Commissioner, Chambal Division, Morena dated 20.6.2007. 1.4.2008 Writ Petition No.3960/2007 is disposed of by holding that process as election instead of selection, followed for appointing of Panchayat Karmi is unlawful and therefore direction issued for adopting the right process of recruitment to fill up post ofPanchayat Karmi. 9.4.2008 Resolution of Gram Panchayat appointing respondent No.4 as Panchayat Karmi. Writ Petition No.5434/2008 Filed by Omprakash Singh Rathore against the resolution dated 9.4.2008. 10.7.2009 Writ Petition No.5432/2008 is disposed of with direction to Gram Panchayat to prepare merit list and thereafter appointing Panchayat Karmi within 30 days after holding that in the first round of litigation no merit list as directed was prepared. Writ Appeal No.308/2009 Filed by the respondent No.4 against the order dated 10.7.2009. 10.8.2009 Writ Appeal is dismissed. 10.7.2009 Writ Petition No.5432/2008 is disposed of with direction to Gram Panchayat to prepare merit list and thereafter appointing Panchayat Karmi within 30 days after holding that in the first round of litigation no merit list as directed was prepared. Writ Appeal No.308/2009 Filed by the respondent No.4 against the order dated 10.7.2009. 10.8.2009 Writ Appeal is dismissed. 24.8.2009 Resolution passed by the Gram Panchayat and preparing merit list and appointing respondent No.4 as Panchayat Karmi after finding following discrepancies in the candidature of the petitioner: 1. Petitioner is over age. 2. Name of the petitioner is mentioned in voter list of two different places. 3. Petitioner is not a local resident. 4. Petitioner has criminal antecedents due to registration of offence punishable under section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 on 5.6.2008. 23.12.2009 ( vide P-1) Impugned order of the Collector, Morena upholding the resolution dated 24.8.2009 of Gram Panchayat appointing respondent No.4 as Panchayat Karmi. Submission of petitioner : 4. Learned counsel for the petitioner submits that impugned order of the Collector is unlawful as the reason assigned by the Gram Panchayat in its second resolution dated 28.4.2009 are untenable in law. The advertisement (vide Annexure P-5) dated 25.4.2008 is based on the guidelines dated 12.9.1995 (vide P-3) (Panchayat Karmi Yojna) do not prescribe any upper age limit for being eligible to be appointed as Panchayat Karmi. It is submitted that there is no disqualification prescribed in regard to the involvement of the candidate in criminal offence. It is further submitted that there is no requirement of the candidate necessarily being a resident of Gram Panchayat/village where the appointment is to take place. Lastly it is submitted that the guidelines in the advertisement also do not prescribe any prohibition of the name of the candidate being mentioned in voter list of two different places. Submission of respondents : 5. On the other hand, learned counsel for the respondent supported the impugned order of the Collector and prays for dismissal of the petition. Lastly it is submitted that the guidelines in the advertisement also do not prescribe any prohibition of the name of the candidate being mentioned in voter list of two different places. Submission of respondents : 5. On the other hand, learned counsel for the respondent supported the impugned order of the Collector and prays for dismissal of the petition. It is further submitted by the respondents that the Statutory Rules namely M.P. Panchayat Service (Gram Panchayat Secretary Recruitment And Conditions Of Service) Rules, 2011, have become applicable since 29.3.2011 which specifically prescribe in Scheduled II column 4 the maximum age of 35 years and thus the petitioner was ineligible, based on his date of birth of 19.8.1964, was over age being 42 years old at the time of issuance of advertisement. It is also submitted that looking to the nature of the work the requirement of the candidate of being a local resident assumes relevance. It is also submitted that the petitioner has a tainted past for being involved in the said offence thereby rendering him unsuitable for public employment. Findings : 6. In regard to the two objections of petitioner not being a local resident and being over age this court has no hesitation to hold at the very outset that the same are baseless and untenable. Reason being that the concept of discriminating a candidate on the ground of residence for public employment is abhorrent to and violative of fundamental right enshrined in Article 16 of the Constitution of India. 6.1. For ready reference and convenience, Article 16 of the Constitution is reproduced below : 16. Equality of opportunity in matters of public employment . -- (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. (4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. (5) Nothing in this Article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. 6.2. From the above, it is evident that discrimination in regard to public employment inter alia on the ground of residence alone is prohibited. 6.3. Moreso the advertisement R-5 does not prescribe local residence as an essential condition but merely a preferential one vide clause (5) of eligibilities which reads thus:- vgZrk,a% 1- 2- 3- 4- 5- ,sls mEehnokj ;FkklaHko LFkkuh; gks blds dk;Z djokus esa vkluh gksA 6.4. Moreso the said prescription of local residence as an essential qualification for appointment as Panchayat Karmi deserves to be looked at from a different angle. The cadre of Panchyat Secretary has now become a District Level Cadre after coming into effect of 2011 Recruitment Rules. Thus even if the said requirement of the candidate being a local resident is insisted upon, the same fades into insignificance once the appointee is transferred to another Gram Panchayat within the same District. This aspect has been succinctly discussed in paras 7 and 8 of the Division Bench decision in the case of Raghvendra Singh v. State of M.P., reported in 2015(3) MPLJ 356. 6.5. Thus, the said reason assigned by the Gram Panchayat in its impugned resolution dated 24.8.2009 and upheld by the Collector in the impugned order are untenable. 7. This aspect has been succinctly discussed in paras 7 and 8 of the Division Bench decision in the case of Raghvendra Singh v. State of M.P., reported in 2015(3) MPLJ 356. 6.5. Thus, the said reason assigned by the Gram Panchayat in its impugned resolution dated 24.8.2009 and upheld by the Collector in the impugned order are untenable. 7. Likewise the ground of over age taken by the respondents deserves to be discarded at the very outset as the instruction in shape of guidelines Annexure P-3 dated 12.9.1995 and the Advertisement Annexure P-5 dated 24.5.2006 do not prescribe any maximum age limit for appointment of Panchayat Karmi. The objection of the counsel for the respondent No.4 with reference to 2011 Recruitment Rules also deserves consideration. Importantly, the said Rules have come into force on their publication in the gazette on 29.3.2011 inter alia prescribing maximum age limit of 35 years, whereas the recruitment of Panchayat Karmi in question had commenced by issuance of advertisement on 24.5.2009 prescribing the last date of submission of application form as 7.6.2006. At the time of issuance of advertisement no upper age limit was prescribed and the field of recruitment to the post of Panchayat Karmi was exclusively governed by the Executive Instructions (Panchayat Karmi Yojna) dated 12.9.2005 with no Recruitment Rules in vogue. Thus the argument of learned counsel for the respondent with reference to Rules 2011 can not be accepted especially when these Rules do not have and can not have retrospective operation. 8. The remaining two reasons assigned for disqualifying the petitioner for appointment is that his name figures in voter list of two different places and that he has criminal antecedents. 8.1. The reason of petitioner’s name figuring in voter list of two areas is further untenable as it places the same embargo which is constitutionally prohibited under Article 16 as enumerated above. Thus the said reason is further untenable in the eyes of the law. 9. Lastly, coming to the reason of petitioner having criminal antecedents, it is further seen from the record that the guidelines P-3 and advertisement P-5 do not prescribe criminal antecedents as any disqualification for appointment to the post of Panchayat Karmi. 10. It may not be out of place to mention here that respondents have further taken into account additional qualification of respondent No.4 as a reason for giving priority to her over the petitioner. 10. It may not be out of place to mention here that respondents have further taken into account additional qualification of respondent No.4 as a reason for giving priority to her over the petitioner. 10.1. The law in regard to the recruiting two competing candidates standing at par is very clear. If a candidate secures more marks in the minimum additional qualification prescribed for the post concerned then some other candidate who secure lesser marks in the said qualifying examination in the absence of any Rule to the contrary, cannot empower recruiting agency to chose the less meritorious candidate. The question of weightage to higher qualification beyond the minimum prescribed under the Rules arises only when two or more competing candidates secure equal marks in the qualifying examination and not otherwise. Conclusion : 11. Resultantly, it is evident that none of the four reasons assigned by the respondents for ousting the candidature of the petitioner are tenable in law. 11.1. In this view of the matter when petitioner’s candidature did not suffer any disqualification, Gram Panchayat was left with the solitary course of comparing the marks obtained by the petitioner vis- a- vis the respondent No.4 in Class Xth examination which is the basic minimum prescribed qualification under the Guidelines and the Advertisement Annexures P-3 and P-5 respectively. Perusal of the merit list reproduced in the impugned order it is evident that the petitioner secured 65.5% in High School whereas respondent No.4 secured 57.06 %. The candidature of the petitioner thus was more meritorious when compared with the candidature of respondent No.4. 12. In view of the above discussion it is crystal clear that petitioner’s candidature was wrongly declared to be unsuitable for appointment to the post of Panchayat Karmi now known as Secretary, Gram Panchayat. 13. Accordingly, this Court allows this petition in the following terms : 1. Impugned order passed by the Collector Morena dated 23.12.2009 Annexure P-1 is set aside. 2. As a necessary consequence the resolution of Gram Panchayat Pacher (Distt-Morena) passed in it’s meeting dated 24.8. 2009 so far as it pertains to the petitioner and the respondent No.4 is set aside. 3. Gram Panchayat respondent No.3 is directed to reconsider the candidature of the petitioner for appointment to the post of Panchayat Karmi/Secretary Gram Panchayat Pacher, Janpad Panchayat Sabalgarh, District Morena. 2009 so far as it pertains to the petitioner and the respondent No.4 is set aside. 3. Gram Panchayat respondent No.3 is directed to reconsider the candidature of the petitioner for appointment to the post of Panchayat Karmi/Secretary Gram Panchayat Pacher, Janpad Panchayat Sabalgarh, District Morena. in the light of this order and pass suitable orders within a period of 60 working days from the date of receipt of copy of this order. 4. No order as to costs.