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Madhya Pradesh High Court · body

2017 DIGILAW 403 (MP)

ATUL KUMAR MOUDGIL v. STATE OF MADHYA PRADESH

2017-03-23

ANAND PATHAK

body2017
ORDER : ANAND PATHAK, J. 1. With consent, heard finally. 2. Present petition has been filed by the petitioner being aggrieved by the action and inaction of the respondents, whereby, the petitioner has not been given appointment on the post of Deputy Director, Public Instructions. Petitioner has prayed the following reliefs:- "(1) That the respondents be directed to extend the benefit of appointment to the petitioner by issuing appointment order on the post of Deputy Director, Public Instructions in pursuance to his selection being made and being placed in merit list issued by the M.P.Public Service Commission at Sr. No. 3 with all other consequential and ancillary benefits arising to the such appointment. (2) Issue a writ of mandamus or any other writ order or direction in the nature of writ under Article 226 of the Constitution of India as this Hon'ble Court may deem fit in facts and circumstances of the case. (3) Cost of the petition may also be awarded." 3. Madhya Pradesh Public Service Commission ( hereinafter shall be referred to as "the Commission") has issued an advertisement dated 29/12/2008 (Annexure P/4) in employment weekly, Rojgar Aur Nirman inviting in service candidature by way of application for appointment on the post of Deputy Director, Public Instructions, School Education Department. Total post advertised were 9 and the eligibility conditions prescribed by the Commission were :- (i) Minimum second class in Post graduation degree or its equivalent; (ii) B.Ed.; and (iii) 10 years experience of administration alongwith educational experience of 3 years up to the level of Higher Secondary School Education. 4. Petitioner answered the advertisement so published as according to him, he was eligible for the same. The selection had to be made amongst the in-service candidates. 5. After selection process being over, result was declared vide result dated 1/9/2011 (Annexure P/1) in which petitioner stood at serial No. 3 in the merit list and his case was kept as provisional. Thereafter, vide order dated 4/2/2012 (Annexure P/8), respondent No. 1 sent a show cause notice to the petitioner in which he was show caused for some misinformation allegedly given by him in the application form given to the Commission. Petitioner promptly replied the said show cause notice and informed the authority about the truth in which he contended that he had never been guilty of concealment of facts in any manner. Petitioner promptly replied the said show cause notice and informed the authority about the truth in which he contended that he had never been guilty of concealment of facts in any manner. Thereafter, vide order dated 13/7/2012 (Annexure P/2), State Government gave appointment to three persons who succeeded in the selection process. Out of these three persons, two were lower to the petitioner in the merit list. After reply of show cause notice, petitioner did not receive appointment letter and his case moved from one authority to another, without any result. 6. According to counsel for the petitioner, the application form contained a clause in which certain information had to be provided. The said clause 19 sought the following information from the candidates:- **19 & D;k vkidks dHkh 'kkldh; ;k vU; lsok ls c[kkZLr fd;k x;k] gVk;k x;k ;k fdlh U;k;ky; }kjk vfHk;kstu nafM+r fd;k x;k gS] ;k vkids fo:) foHkkxh; tkap yafcr gS] ;fn gka rks fooj.k nsaA** 7. Because of the fact that petitioner never faced any of the contingencies as provided in the aforesaid clause, therefore, he answered the said clause in negative which according to respondents was 'Concealment of Facts' because in year 2010, Commissioner, Bhopal Division had inflicted a minor penalty of Censure against petitioner vide penalty order dated 22/11/2010 (Annexure P/11). According to the respondents, the said infliction of penalty was not disclosed by petitioner in clause 19 of the application form; whereas, according to the petitioner the mentioning of said fact did not fit in any of the enquiries sought in clause No. 19, therefore, he did not refer the same. 8. Since then, petitioner could not get the appointment despite being selected by the Commission. 9. While contesting the case, respondents No. 1 and 2/State filed a short reply and submitted that because of the punishment of censure as inflicted earlier, petitioner was not given the benefit of appointment, but later on, finding the truth and on the advise and opinion of General Administration Department, his name has been forwarded to the Principal Secretary, School Education Department for extension of period of selection list and therefore, Principal Secretary has referred the case of petitioner to the Commission for extension of selection list. The respondents have referred the letter dated 3/4/2014 and 8/5/2014 written on behalf of respondent No. 1 to the Commission for extension of validity of selection list for grant of benefit of appointment to the petitioner. 10. Respondent No. 3/Commission has also filed the reply and contested the case on the ground that the Commission was ready to grant appointment to the petitioner but the State Government had not extended the selection list, therefore, same has been lapsed. Hence,the appointment order could not be issued to the petitioner. According to the reply filed by the Commission, State Government has not sent any order regarding grant of appointment to the petitioner, hence, answering respondent No. 3 was not in a position to give appointment to the petitioner. In the reply, the Commission has also referred the fact that, if the State Government gives any direction to the Commission to give appointment then the Commission is ready to give appointment to the petitioner and therefore, according to the Commission, relief as claimed by the petitioner can only be given by the State Government. To support his case learned counsel for the respondent No. 3- Commission has placed reliance over the judgments of Hon'ble Apex Court in the matter of Deepa Keyes v. Kerala State Electricity Board and Another, (2007) 6 SCC 194 , Union of India and Ors. v. B. Valluvan and Ors., (2006) 8 SCC 686 and Girjesh Shrivastava and Ors. v. State of M.P. and Ors., (2010) 10 SCC 707 . 11. Heard learned counsel for the parties at length and perused the record. 12. The Commission (respondent no. 3) is the supreme selection and recruitment agency for the State Level Services of State Government. From the record,it is gathered that in year 2008, vide advertisement dated 29/12/2008 (Annexure P/4), total 9 posts were advertised for appointment to the post of Deputy Director, Public Instructions under the aegis of School Education Department, wherein, certain qualifications as mentioned above were prescribed. Petitioner answered the advertisement and submitted his application form. His candidature was duly appreciated by the Commission and therefore, his name figured at serial No. 3 in the selection list dated 1/9/2011. His selection was referred as provisional because of the reasons best known to the Commission. Petitioner answered the advertisement and submitted his application form. His candidature was duly appreciated by the Commission and therefore, his name figured at serial No. 3 in the selection list dated 1/9/2011. His selection was referred as provisional because of the reasons best known to the Commission. When the matter went to the State Government, it appears that the government withheld the issuance of appointment order to petitioner on the ground of concealment of information of infliction of minor penalty of censure given to him at an earlier point of time in his career. According to the State Government, which is the Principal Employer, petitioner had not disclosed in his application form about the infliction of minor penalty. 13. Therefore, sole question revolves around description of clause 19 in the application form to the extent whether said clause contains any such contingency which amounted to concealment of fact on behalf of petitioner. 14. For ready reference, clause 19 of the application form is reproduced hereinbelow:- **19 & D;k vkidks dHkh 'kkldh; ;k vU; lsok ls c[kkZLr fd;k x;k] gVk;k x;k ;k fdlh U;k;ky; }kjk vfHk;kstu nafM+r fd;k x;k gS] ;k vkids fo:) foHkkxh; tkap yafcr gS] ;fn gka rks fooj.k nsaA** 15. As such this clause contain three exigencies (I) whether the candidate was removed from government job or from any other job, ever; (ii) whether any Court has prosecuted or punished him ever, and (iii) Whether any departmental enquiry is pending against him. 16. In the present fact situation, petitioner has been inflicted minor penalty of censure by the Commissioner, Bhopal Division vide order dated 22/11/2010 (Annexure P/11). This infliction of minor penalty neither comes under removal from government job nor comes under prosecution and punishment by any Court nor comes under pendency of any departmental enquiry. Therefore, petitioner was right while not referring the infliction of minor penalty in clause 19 of the application form. Once, this aspect of alleged concealment of fact goes then no other disability attached with the petitioner by the respondents exists and therefore, petitioner becomes entitled for appointment to the post of Deputy Director, Public Instructions, when the appointment order dated 13/7/2012 (Annexure P/2) was issued to other similarly situated persons. 17. Once, this aspect of alleged concealment of fact goes then no other disability attached with the petitioner by the respondents exists and therefore, petitioner becomes entitled for appointment to the post of Deputy Director, Public Instructions, when the appointment order dated 13/7/2012 (Annexure P/2) was issued to other similarly situated persons. 17. Petitioner placed the copy of correspondence made between the petitioner and departmental authorities in School Education Department as well as inter se between the authorities (obtained through Right To Information Act) and perusal of said proceedings reveals that petitioner is the victim of circumstances and had to suffer over no fault of his own. Procedural formalities and inertia undertaken by different authorities of State Government in the present case virtually rendered the case of petitioner of 'Implied Rejection' without any disqualification and stigma attached to his case. Perusal of order sheets/note sheets, further reveals that not only the School Education Department but even to the extent of Cabinet meeting, his case was approved by the State Government but because of some confusion regarding validity of selection list, his case could not be concluded for appointment. The perusal of returns filed by State Government as well as Commission, further reveals that both the authorities are inclined for the redressal of grievance of the petitioner but somehow shifting the burden over each other. 18. Learned counsel for the petitioner specifically submitted that posts of Deputy Director, Public Instructions have not been filled up yet and some posts are still lying vacant. Said fact did not receive rebutted from respondents. 19. Said fact has not been rebutted by the respondents in any manner, therefore, once the post is available and selection list has not been exhausted due to fault of respondents then on the technical and procedural pretext, petitioner cannot be denied his valuable right to be considered and appointed as Deputy Director, Public Instructions. Fundamental rights enshrined under Article 14, 16 and 19 of the Constitution of India as well as legal right of the petitioner for appointment warrant interference under equitable jurisdiction under Article 226 of the Constitution of India. 20. The State Government itself requested the Commission vide letter dated 8/5/2014 for extension of validity of period of select list for one year so that justice can be done with the petitioner. 20. The State Government itself requested the Commission vide letter dated 8/5/2014 for extension of validity of period of select list for one year so that justice can be done with the petitioner. The said letter also contains the reference of one Rameshwar Chauhan, who was also given the same benefit and appointed on the post of Deputy Director,Public Instructions by way of order of this court passed in W.P. No. 7026/2011 dated 16/5/2012 (Rameshwar Chauhan v. M.P. Public Service Commissioner and subsequently in Writ Appeal No. 255/2012 decided by a Division Bench of this Court at Indore Bench wherein certain directions in respect of said candidate Rameshwar Chauhan had been passed. Reference of all these facts finds place in para 3 of the letter dated 8/5/2014 in reply filed by respondents No. 1 and 3. 21. If this is the position, then there is no reason for the respondents to discriminate between two similarly situated persons. Once, validity of the select list has been extended for one candidate then, same protection can be adopted for the present petitioner also. Earlier in case of Vishal Meda v. State of M.P. (W.P. No. 4643/2008) and Pallavi Shukla v. State of M.P. & Ors., (W.P. No. 1062/2011 decided on 23/1/2015) decided by Coordinate Bench, the Commission extended the validity of the select list. 22. A Division Bench of this Court at Principal Seat Jabalpur in the matter of Rekha Dhurve v. State of M.P., 2009 (2) MPLJ 382 has also given the same benefit to the petitioner therein; as petitioner had approached the respondents during the validity period of the select list and therefore, the relief could not be declined to the present petitioner on the ground that validity of select list had expired during the pendency of the writ petition. 23. In the present case, the Commission had recommended the case of the petitioner to the State Government considering the petitioner to be eligible for appointment to the post of Deputy Director, Public Instructions. Although the said selection was made provisional, but neither the petitioner nor the respondents/State nor respondent-Commission could explain the reasons for keeping the petitioner as provisional appointee. From the record and subsequent action and correspondence made between the parties it appears that the said provisional selection was made because of doubt created in respect of Clause 19 of the application form. From the record and subsequent action and correspondence made between the parties it appears that the said provisional selection was made because of doubt created in respect of Clause 19 of the application form. Once the doubt got cleared from the Employer i.e. respondent No. 1-State then the appointment of the petitioner can be treated as Regular and not Provisional. Therefore, in the present fact situation of the case,State is not required to seek extension of validity of the selection list from the Commission because Commission had already recommended the name of the petitioner and it was Employer (State) which could not issue the appointment letter to the petitioner on 13/7/2012 when other selected candidates were given the appointment. 24. The judgments of Hon'ble Apex Court cited by learned counsel for the Commission in the matter of Deepa Keyes v. Kerala State Electricity Board and Another, (2007) 6 SCC 194 , Union of India and Ors. v. B. Valluvan and Ors., (2006) 8 SCC 686 and Girjesh Shrivastava and Ors. v. state of M.P. and Ors., (2010) 10 SCC 707 are not applicable in the present fact situation of the case as they move in different factual realm. In those cases, candidates seeking appointment were either in the waiting list or were not selected by the Selection Agency. Here the petitioner was very much selected by the Commission and recommended for appointment. Beside that, respondent No.3-Commission cannot rely upon these judgments at this stage because reply filed by the Commission carries some different story and in fact, in the reply; the Commission has accepted that if State Government recommends the name of the petitioner for appointment then Commission has no objection to it. Therefore, Commission cannot take a somersault at this stage. 25. Learned counsel for the respondent No.3-Commission has orally referred to Madhaya Pradesh State and Subordinate Education Services (School Branch) Recruitment and Promotion Rules, 2016 (for short "Rules of 2016") and referred to Rule 15 and 17 of the Rules of 2016 to submit that petitioner is not entitled for any relief as the selection list has been expired and cannot be extended beyond a total period of 18 months. But the said ground does not deserve consideration on two counts; one is that the rules are dated 12th July,2016; whereas, the appointment has been made to the petitioner in the year 2012, therefore, the application of Rules of 2016 cannot be applied retrospectively. Secondly, at the cost of repetition, this Court clarifies that Court cannot ignore the reply of the Commission, wherein, respondent No. 3-Commission has not taken any such plea either at the time of filing the reply or subsequent to it by way of additional reply. In fact, in reply, respondent No. 3-Commission supported the cause of petitioner. Therefore,this argument of respondent No. 3- Commission has no force. 26. Considering the fact situation of the case, State Government is competent to issue appointment letter to the petitioner because the case of the petitioner suffers from violation of fundamental rights of the petitioner enshrined under Article 14, 16 and 19 of the Constitution of India. 27. Thus, in totality of the circumstances, respondents No. 1 and 2 are directed to consider case of the petitioner for giving appointment to him on the post of Deputy Director, Public Instructions, if he is otherwise eligible for the same and necessary exercise be completed within three months from the date of receipt of certified copy of this order. Petitioner would be given appointment from the date when his other similarly situated persons were given the appointment; however, he would not be entitled for salary for the period lapsed on the principle, no work, no pay, but would be entitled for other service benefits. 28. With the aforesaid observation, petition stands allowed and disposed of to the extent indicated herein-above. No order as to costs.