Madhya Pradesh High Court
The State Of Madhya Pradesh Thr vs Rajesh Pratap Singh Bais on 9 March, 2018
1
THE HIGH COURT OF MADHYA PRADESH
W.A. No. 1000/2017
(State of M.P. & others Vs. Rajesh Pratap Singh Baish & others)
Gwalior, 09/03/2018
Shri Praveen Newaskar, learned Government
Advocate for the appellants/State.
Shri Sanjay Singh, learned counsel for the
respondents.
There is a delay of 144 days in filing this appeal under Section 2(1) of the Madhya Pradesh Uchcha Nayayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, condonation whereof is being sought vide I.A. No. 14779/2017. It is contended that after receiving the certified copy of the order from the office of Additional Advocate General on 25/05/2017 and after getting the legal opinion, the matter was referred to Police Head Quarter whereon permission was granted on 10/07/2017. Thereafter the officer-in-charge along with relevant papers contacted in the office of the Additional Advocate General whereon the present appeal was drafted and filed. It is urged that the delay is bonafide. Though the condonation has been opposed on the basis of the decisions in Amalendu Kumar Bera and others Vs. State of W.B. [2013(3) MPLJ 1] & Union of India and others Vs. Nripen Sarma [2013(3) MPLJ 5]. However, in the case at hand, as the delay has been sufficiently explained, the same deserve to be and is hereby condoned.
With the consent of learned counsel for the 2 parties, the matter is finally heard.
This appeal under Section 2(1) of the Madhya Pradesh Uchcha Nayayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 28/02/2017 passed in Writ Petition No. 8257/2011(S) whereby learned Single Judge relying upon the decision in Vidhya Bhushan Mishra Vs. State of M.P. and another: Writ Petition No. 1157/2011 decided on 10/03/2015 and Writ Appeal No. 908/2011 decided on 07/10/2015 directed the relaxation of age for appointment to the post of Sub-Inspector.
The petitioners who are contract teachers under various Gram Panchayats, subsequently, designated as Adhyapak under Madhya Pradesh Panchayat Adhyapak Samvarg (Employment and Conditions of Services) Rules, 2008 were denied age relaxation for the recruitment as Sub-Inspector conducted vide recruitment examination 2011, in terms of clause 1.6.2 of the employment notice which stipulates:-
"1.6.2- os vH;FkhZ tks e/; izns'k 'kklu ds LFkk;h 'kkldh; lsod gSa] ;k e/; izns'k 'kklu esa vLFkk;h in /kkj.k djus okys 'kkldh; lsod gSa] mudh vf/kdre vk;q lhek 36 o"kZ gksxhA e/;izns'k jkT; 'kklu ds [email protected] ds deZpkfj;ksa dks Hkh vk;q lhek esa NwV ds iz;kstu ds fy;s 'kkldh; lsod ekuk x;k gSA ;g NwV vkdfLedrk fuf/k ls osru ikus okys deZpkjh@dk;ZHkkfjr deZpkjh rFkk ifj;kstuk dk;kZUo;u lfefr ds vUrxZr dk;Zjr deZpkfj;ksa dks Hkh vuqKs; gksxhA dsUnz 'kklu vFkok vU; jkT;ksa ds lsokjr vFkok HkwriwoZ 3 'kkldh; lsodksa dks vk;q lhek esa fdlh ,slh NwV dh ik=rk ugha gS] tks bu fu;eksa esa ugha nh xbZA lh-vkj- ih-,Q-] ch-,l-,Q-] vkbZ-Vh-ch-ih- vkfn dsUnz 'kklu ds
v)Z lSfud ;k iqfyl cyksa ds lnL;ksa dks vk;q esa NwV dh ik=rk ugha gSA 'kkldh; lsodksa dks mDr NwV dh ik=rk izkIr djus ,oa p;u ls gqbZ fu;qfDr dh ik=rk izkIr djus ds fy;s vius orZeku fu;qfDr izkf/kdkjh ls fyf[kr iwokZuqefr vo'; gh izkIr djuh gksxh vkSj ,slh fyf[kr vuqefr dks nLrkost lR;kiu ds le; izLrqr djuk gksxkA"
It is pertinent to note at this stage that respondent No. 1 Rajesh Pratap Singh Bais had earlier approached this Court vide Writ Petition No. 6645/2010 for the similar relief which was dismissed on 20/12/2011 whereby learned Single Judge taking into consideration the class of persons entitled for age relaxation under Rule 8 of Madhya Pradesh Police Executive (Non-Gazetted) Service Recruitment Rules 1996 available only to the permanent servants of the State Government, ex- servicemen, retrenched Government servants, widows, destitutes and divorced women, green card holders, schedule caste, backward class, vikram awardees and employees of M.P. State Co-operation /board and Homeguards, declined the age relaxation to Adhyapak, holding:-
"7. Even if the petitioners are confirmed/ absorbed as Adhyapak, their status is still as employees of the local body. A microscopic reading of Sections 51(2) and 53(1)(b) of the Adhiniyam and Rule 8 also show that they are still employees of a local body. Rule 8 of 2008 Rules makes it crystal clear that the petitioners are 4 required to discharge their duties under the administrative and disciplinary control of Jila Panchayat or Janapad Panchayat, as the case may be. Merely because their disciplinary and appellate authorities are State Government officers, that does not give them status of a Government employee. Thus, a complete reading of the Adhiniyam and the Rules makes it crystal clear that the petitioners are not the Government employees of State of Madhya Pradesh. Instead, they are the employees of Panchayat. In a similar matter, i.e., Writ Petition No. 19301/2011 the Principal Seat has dismissed the petitions by relying on Arun Singh Bhadoriya's case (supra)...."
Evidently, in the case at hand, learned Single Judge glossed over the decision in Writ Petition No. 6645/2010, though the same was filed along with the return as Annexure R/2. Even otherwise, the reliance placed on the decision in Vidhya Bhushan Mishra (supra) was miscued. Because the decision in Vidhya Bhushan Mishra (supra) turned on clause 7 of the advertisement for appointment of Assistant Conservator of Forest which was in the following terms:-
"7- vk;q lhek& 21 dh vk;q iw.kZ dj yh gks ijarq 28 o"kZ iw.kZ u dh gksA vk;q lax.kuk frfFk 01-01-2011 gksxh vk;qlhek esa nh xbZ vU; NwVksa ds fy;s ifjf'k"V&,d ns[ksaA e/;izns'k 'kklu ds LFkk;h] vLFkk;h odZpkTMZ ;k dkafVtsalh isM deZpkjh ifj;kstuk dk;kZUo;u lfefr;ksa esa fu;ksftr leLr Js.kh ds deZpkfj;ksa rFkk jkT; ds fuxe] eaMy] e.My ifj"kn~] uxj fuxe] uxj ikfydk vkfn Lo'kklh laLFkkvksa esa dk;Zjr leLr Js.kh ds deZpkfj;ksa 5 ¼efgyk deZpkjh Hkh½ ds fy, vf/kdre vk;q lhek 38 o"kZ fu/kkZfjr gSA ¼l{ke vf/kdkjh dk izek.ki= layXu djsa½A ,sls vkosndksa dks ifjf'k"V&1 ¼,d½ esa vafdr mDr NwV ds vfrfjDr vU; fdlh Hkh NwV dk ykHk izkIr ugha gksxk ijarq ifjf'k"V&1 ¼nks½ izksRlkgu Lo:i nh xbZ NwVksa esa ls vf/kdre ykHk okys fdlh ,d NwV dk ykHk rRlaca/kh l{ke vf/kdkjh }kjk tkjh izek.k i= izLrqr djus ij ns; gksxkA"
Comparison of clause 1.6.2 (read with Rule 8 of 1996 Rules) of the recruitment examination 2011 with clause 7 of recruitment notice for Assistant Conservator of Forest would reveals that the person who are given relaxation vide clause 7 are not included in clause 1.6.2.
In view whereof, the order dated 28/02/2017 passed in Writ Petition No. 8257/2011(S) is set aside. Writ Petition filed by the respondents is dismissed. No costs.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
shubh*
Digitally signed by SHUBHANKAR MISHRA
Date: 2018.03.12 19:03:19 +05'30'