Madhya Pradesh High Court
Naresh Nigam vs The State Of Madhya Pradesh on 27 February, 2019
Bench: S.K.Seth, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH : JABALPUR
W.P.No. 8848/2011
Naresh Nigam
-Versus-
State of Madhya Pradesh and others
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CORAM :
Hon'ble Shri Justice S.K.Seth, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
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Shri B.K.Mishra, Advocate for the petitioner
Shri M.K.Verma, Government Advocate for the respondents/State.
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Whether approved for reporting:
Whether approved for Yes
reporting?
Law laid down (1) Merementioning of a wrong provision
of law when the power exercised is
available even though under a different
provision, is by itself not sufficient to
invalidate the exercise of that power.
(ii) It is a settled legal proposition that
Article 14 is not meant to perpetuate
illegality and it does not envisage
negative equality. Thus, even if some
other similarly situated persons have been
granted some benefit inadvertently or by
mistake, such order does not confer any
legal right on the petitioner to get the
same relief.
Significant paragraph Nos. 7, 8 and 9
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ORDER
(Jabalpur dt.: 27.02.2019) Per : V.K. Shukla, J.-
Invoking the jurisdiction under Article 226 of the Constitution of India, the petitioner has prayed for quashment of the order dated 23-10- 2010, passed by the respondent no.4, whereby the petitioner has been 2 declared disqualified for the post of Forest Guard on the ground that he failed to clear qualifying walk in physical test as he took 5.05 hours to complete walk of 25 kms. whereas the said distance was to be completed within the prescribed time of 4 hours. In the impugned order, the authority has made reference of Rule 6(4) of M.P. Civil Services (General Conditions of Service) Rules, 1961 and Rule 8(3) (a) of M.P. Class III (Non-Ministerial) Forest Services Recruitment Rules,2000 (hereinafter referred to as Rules, 2000).
2. Initially the petitioner challenged the constitutional validity of the provisions of Rule 8(3)(b) of Rules, 2000 but on 02-01-2014, counsel for the petitioner stated that he is not pressing the prayer for Clause 7(i) challenging the validity of Rule 8(3)(b) of Rules, 2000, therefore, as a consequence, the said prayer was deleted.
3. The contention of the petitioner is that he is already working in the department on daily wages as a labour, therefore, he should have been given another chance for physical test as there is a provision for providing second physical test in the Recruitment Rules and Regulations of Indian Forest Service. It is also contended that the requirement of walking on 25 kms. in 4 hours is for the candidates who are appearing for direct recruitment and not to the candidates who are already working in the department.
4. Learned counsel for the State supported the order impugned and 3 submitted that the petitioner could not qualify the physical fitness test as required under Rule 8(3)(a) of Rules, 2000 as he failed to qualify 25 kms. walk in 4 hours.
5. After having heard the learned counsel for the parties, we do not find any merit in the writ petition.
6. The State of M.P. in exercise of the powers conferred under Article 309 of the Constitution of India has framed the rules for recruitment of the forest guard called as the Madhya Pradesh Class-III (Non-Ministerial) Forest Services Recruitment Rules, 1999(however, it is pointed out that the Rules are of the year 2000 but there is a printing mistake and it is wrongly reflected that the Rules were framed in the year 1999). The fact remains that the aforesaid rules were notified vide Notification No.F-21- 13-87-X.1 dated 21-05-2001, published in the M.P. Rajpatra. The provisions of Recruitment Rules are very clear. Relevant Rule 8(3)(a) reads as under :
"(3) Physical Qualification-(a) For direct recruitment to the post of Forest Guard, a candidate must pass the competitive examination in the subject as prescribed by the selection committee as well as shall have to complete a walk of 25 km. in 4 hours in case of man and 14 km. in 4 hours in case of women alongwith shall have to pass the prescribed physical fitness test.
(b) The minimum physical standard for the post of Forest Guard shall be as follows:-
Physical standard Male candidate Female candidate Height 163 cm 150 cm General Chest 79 cm -
Minimum Expansion of Chest 05 cm -4
Note.-(1) For Scheduled Tribes, the minimum height for male candidate should be 152 cm and for the female candidates should be 145 cm.(2) In the Naxal affected areas in the Madhya Pradesh, 5 cm chest relaxation (unexplained 74 cm/expanded 79 cm) shall be given.(3) Chest measurement is not required for the Female candidate."
As per the provisions of the recruitment rules, rule-8 deals with the conditions of Eligibility of Direct Recruitment. Sub rule (1) thereof deals with age, sub rule (2) Educational qualification and sub rule(3) deals with physical qualification. The aforesaid rules provide that a candidate has to pass the competitive examination as prescribed by the selection committee as well as has to clear qualifying walk of 25 kms. within 4 hours in case of a male candidate and 14 kms. within 4 hours in a case of woman.
7. Upon perusal of the rules and from the record, we do not find any rule which provides for second chance to those candidates who have not qualified the physical fitness test or any relaxation in that regard. The petitioner referred Annexure P-1 dated 20-08-2008 issued by the Principal Chief Conservator of Forests, Bhopal to all the Conservator of Forests (Territorial) regarding recruitment of daily wager labours working in the department. Condition No.1 is very clear that only those daily wager labours working in the department shall be selected for appointment on the post of Forest Guard, who possess educational as well as physical qualification . Thus, there is no provision either in the Recruitment Rules or in any circular providing any kind of relaxation in physical fitness test.
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8. From the aforesaid provision, it is very clear that a candidate has to pass competitive examination in the subject as prescribed by the selection committee as well as physical test by completing a walk of 25 kms. within 4 hours in case of male candidate and 14 km. in 4 hours in case of women. Admittedly, the petitioner failed to clear qualifying walk test of 25 kms. as required under the Recruitment Rules. He has no right to claim appointment on the post of Forest Guard. Mere mentioning of wrong provision of Rule 6(4) of M.P. Civil Services (General Conditions of Service) Rules, 1961 in the impugned order would not render the impugned order illegal or arbitrary. In the case of Collector of Central Excise, Calcutta Vs. Pradyumna Steel Ltd. (2003)9 SCC 234, the Apex Court held that mere mentioning of a wrong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power. The provisions of Rule 8(3)(a) of Rules, 2000 which provides for qualifying physical test is also referred in the impugned order. We do not find any anomaly in the rules.
9. We also do not find any merit in the contention of the petitioner that some candidates who had not completed the walk within the prescribed time of 4 hours have been appointed by the respondents as the negative equality cannot be claimed because admittedly the petitioner has failed to qualify 25 kms, walk test as required under Rule 8(3)(a) of Rules, 2000. In the case of State of Orissa and another Vs. Mamata Mohanty (2011)3 SCC 436, the Apex Court held that it is a settled legal 6 proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief.
10. In view of the aforesaid, we do not find any merit in the writ petition. Accordingly, the petition is dismissed.
(S.K.SETH) (VIJAY KUMAR SHUKLA) CHIEF JUSTICE JUDGE hsp.