Madhya Pradesh High Court
The State Of Madhya Pradesh vs Vikram Singh Chouhan on 15 September, 2021
Author: Vijay Kumar Shukla
Bench: Mohammad Rafiq, Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
W.A. No.364/2021
The State of M.P. & ors.
-Versus-
Harish Solanki and anr.
W.A. No.321/2021
The State of M.P. & ors.
-Versus-
Bhupendra Mani Pandey and anr.
W.A. No.341/2021
The State of M.P. & ors.
-Versus-
Neelesh Awasthi and anr.
W.A. No.342/2021
The State of M.P. & ors.
-Versus-
Kapoor Tripathi and anr.
W.A. No.345/2021
The State of M.P. & ors.
-Versus-
Naresh Behra and anr.
W.A. No.346/2021
The State of M.P. & ors.
-Versus-
Rahul Pandey and anr.
W.A. No.365/2021
The State of M.P. & ors.
-Versus-
Birendra Kumre and anr.
2
W.A. No.366/2021
The State of M.P. & ors.
-Versus-
Dhan Singh and anr.
W.A. No.367/2021
The State of M.P. & ors.
-Versus-
Omprakash Chongde and anr.
W.A. No.393/2021
The State of M.P. & ors.
-Versus-
Sanjay Kumar Uikey and anr.
W.A. No.394/2021
The State of M.P. & ors.
-Versus-
Krishna Kumar Pandey .
W.A. No.395/2021
The State of M.P. & ors.
-Versus-
Vikram Singh Bamaniya and anr.
W.A. No.396/2021
The State of M.P. & ors.
-Versus-
Vikram Singh Chouhan and anr.
W.A. No.397/2021
The State of M.P. & ors.
-Versus-
Dharmendra Singh Dhurvey & and anr.
W.A. No.421/2021
The State of M.P. & ors.
3
-Versus-
Balwant Singh and anr.
W.A. No.422/2021
The State of M.P. & ors.
-Versus-
Miss Faimida Khan
W.A. No.423/2021
The State of M.P. & ors.
-Versus-
Santosh Yadav & ors.
W.A. No.424/2021
The State of M.P. & ors.
-Versus-
Jitendra Singh Mawal
W.A. No.425/2021
The State of M.P. & ors.
-Versus-
Darshan Shukla
W.A. No.428/2021
The State of M.P. & ors.
-Versus-
Bijendra Verma
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Appearance :
Shri B.D. Singh, Govt. Advocate for the appellants/State.
Shri Abhishek Arjaria, Shri Ajay Pal Singh, Shri Prashant Sharma,
Shri Sanjay K. Agrawal, Shri Mahendra Pateriya, Shri Siddharth
Sharma and Shri Deo Krishna Katare, advocates for the respondents
in respective writ petition.
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_______________________________________________________
CORAM :
Hon'ble Shri Justice Mohammad Rafiq, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
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[Hearing convened through virtual/physical mode]
JUDGMENT
(Jabalpur, dtd.15.9.2021) Per : Vijay Kumar Shukla, J.-
In the present bunch of intra-court appeals preferred under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth ko Appeal) Adhiniyam, 2005, assail is to the common order, dated 28-01-2020, passed by the learned Single Judge, whereby writ petitions filed by the respondents have been allowed. For the sake of convenience the facts adumbrated in WA- 364-2021 are noted.
2. Filtering the unnecessary details, the facts which are requisite to be exposited for the purpose of adjudication of these writ appeals, are that the respondent No.1 was working on the post of Sub-Inspector of Police. In pursuance to the order dated 6-8-2013 passed in WP-3134-2012 [Gokul Prasad Ajameriya vs. State of M.P. & ors] and WP-3135-2012 [Raneet Singar and others vs. State of M.P. & ors.], a notice was issued on 11-9-2015, whereby the respondent No.1 was found fit for the post of Platoon 5 Commander in place of Sub-Inspector. The said notice was challenged by the writ petitioner/respondent No.1 in the writ petition. The case of the respondent No.1 was that State Government advertised vacancies for filling-up total 371 Technical and Non- technical posts of Sub-Inspector through the Police Recruitment Test, 2011 conducted by the M.P. Professional Examination Board, Bhopal. The respondent No.1 participated in the said process and had secured position in the waiting list.
3. As per Rule 12-B of the Madhya Pradesh Police Executive (Non-gazetted) Service Recruitment Rules, 1997 [hereinafter referred to as "the Rules 1997"], a selected candidate has to join the Jawahar Lal Nehru Police Academy, Sagar or Police Training College, Indore for training on or before the last prescribed date, and if the candidate fails to join the same within the stipulated period without obtaining any permission from the appointing authority, his name will be deleted from the select list.
4. It was contended by the respondent No.1 before the learned Single Bench that a person whose name finds place in the final select list, did not report at different training centre i.e. stipulated time period and as per Rule 13-B of the Rules 1997 , a candidate whose name finds mention in the waiting list prepared 6 under Rule 13-A was given offer to join. In pursuance to the same the respondent No.1 was given joining on the post of Sub-Inspector.
5. It is setforth that when the respondent No.1 was undergoing the training a writ petition forming the subject-matter of WP-3502-2012 [Tajinder Singh vs. State] was filed before the Indore Bench of this Court, wherein the respondent No.1 was made a party. During the said period two more writ petitions, i.e. WP-3134- 2012 and WP-3135-2012 were filed before the Indore Bench. The said writ petitions were disposed of vide order dated 6-8-2013, whereby the revised select list was quashed, directing the Authority to carry out the exercise of re-allocation of post based upon merit list. Meaning thereby - exclusively on merits within a period of 60 days from the date of receipt of the certified copy of the order.
6. In pursuance to the said direction, process of re- allocation of post was carried out on the basis of merits. After re- allocation of the post, allotment of 47 candidates were changed and on the basis of the same, the order dated 11-9-2015 was issued, wherein the name of the respondent No.1 finds mention at serial number 16. During the said period another writ petition forming the subject-matter of WP-5820-2012 [Rajesh Kumar Sikarwar vs. State of M.P.] was filed before the Gwalior Bench of this Court. The 7 said writ petition was filed by the candidate, who had earlier joined the services as per the merit list prepared under Rule 13-A of the Rules 1997. Subsequently, when a waiting list candidate was given joining in place of person, who had not joined the services, the petitioners therein, challenged the said action on the ground that they are more meritorious than the wait-listed candidates and, therefore, they had right over the post.
7. Taking into consideration the submissions made by the petitioner therein and also the Rules 13-A and 13-B of the Rules 1997, the Gwalior Bench of this Court dismissed the writ petition holding that if any selected candidate from the select list does not join within the stipulated period, then a candidate from the waiting list will be offered appointment in the order of merit and if any offer is extended to the candidate of the waiting list, the same cannot be said to be illegal.
8. It is also to be noted that the Rules 1997 regulates appointment of the M.P. Police Executive (Non-Gazetted Service). Appointment by direct recruitment by selection through competitive examination is one of the modes of appointment under Rule 6 of the Rules 1997. No other method than provided for under Rule 9 of the Rules 1997 can be adopted for making appointment to the service as 8 provided for under Rule 7 of the Rules 1997. Under Rule 13 of the Rules 1997, merit list is prepared on the basis of marks obtained in the written examination, physical proficiency test and interview. Appointments are required to be made to service in order of seniority on the basis of preference given by the candidate and availability of post.
9. Thereafter, the respondent No.1 challenged the order dated 11-9-2015 before this Court on the ground that the Gwalior Bench in WP-5820-2012 - Rajesh Kumar Sikarwar (supra) has already given verdict in favour of the wait-listed candidates and, therefore, his case is duly covered by the order passed by the Gwalior Bench.
10. The appellants/State in their reply asserted that the communication dated 11-9-2015 was issued in compliance to the order passed by the Indore Bench, dated 6-8-2013 passed in WP- 3134-2012 and WP-3135-2012 (supra). The order passed in WP- 3134-2012 (supra) was challenged in the writ appeal forming the subject-matter of WA-1109-2013, which was ultimately dismissed on 01-12-2014, with the further direction to the appellants to prepare a revised waiting list.
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11. Against the impugned action of the appellants, 17 more writ petitions were filed, which came up for hearing before the learned Single Judge and the same were decided by a common order dated 28-01-2020. By the impugned order in these intra-court appeals, the writ petitions have been allowed setting aside the show cause notice dated 11-9-2015 and also the consequent order dated 15- 10-2015. Be it noted, the learned Single Judge allowed the writ petitions considering the order passed by the Gwalior Bench of this Court in WA-256-2014 [State of M.P. vs. Pushpendra Singh Bhadoriya].
12. The validity of the order dated 24-6-2014 passed in the case Pushpendra Singh Bhadoriya vs. State of M.P. and others [WP-7674-2012] was also tested by the Division Bench of the Gwalior Bench in WA-256-2014, whereby by order dated 10-01- 2018 the writ appeal preferred by the State was allowed and the order dated 24-6-2014 passed in WP-7674-2012 was set aside. The learned Single Judge observed that the order passed by the Indore Bench in the case of Gokul Prasad Ajameriya (supra) and Raneet Singar & ors. (supra) dated 6-8-2013 as also the decision of the Division Bench at Indore in WA-1109-2013 affirming the order dated 6-8-2013 has been distinguished by a Co-ordinate Bench in WP- 5820-2012 [Rajesh Kumar Sikarwar vs. State of M.P. and others] 10 and by Division Bench Bench at Gwalior by order dated 10-01-2018 passed in WA-256-2014 : Pushpendra Singh Bhadoriya (supra). It is submitted that in WA-1109-2013, attention of this Court was not drawn to the fact that the Sub-Inspector and Platoon Commander carries out equal pay-scales. Hence, it is observed that the order passed by the Indore Bench in Gokul Prasad Ajameriya (supra) is of no assistance.
13. The learned Single Judge after referring to the Full Bench judgment rendered in the case of Jabalpur Bus Operators vs. State of M.P. and others, 2003 (1) MPLJ 513, observed that the later judgment would prevail, as the order passed in the case of Gokul Prasad Ajameriya (supra) has already been explained and distinguished by the Co-ordinate Bench of this Court in the case of Rajesh Kumar Sikarwar (supra). On going through the judgment passed in the case of Gokul Prasad Ajameriya (supra) and Raneet Singar & ors. (supra), it is noted that the aforesaid order was passed placing reliance on the decision of Apex Court rendered in the case of Anurag Patel vs. U.P. Public Service Commission and others, (2005) 9 SCC 742, which was the basis for passing directions to carry out exercise on re-allocation of post based on merits. 11
14. In view of the aforesaid two judgments passed in Gokul Prasad Ajameriya (supra) and Raneet Singar & ors. (supra), the following questions emerge for consideration :
(i) Whether the judgment passed by the Division Bench in the case of Pushpendra Singh Bhadoriya (supra) : WA-256-2014 is a binding precedent, in absence of non-consideration of the judgment rendered by the Apex Court in Anurag Patel (supra), whereby it is categorically held that the appointment to a post has to be done strictly in accordance with merits as per the select list and preference of a person higher in the select list will be seen first and appointment has to be given accordingly ?
(ii) Whether the judgment passed by the Gwalior Bench in the case of Pushpendra Singh Bhadoriya (supra) : WA-256-2014 would be an order in per incurium, because of non-consideration of the decision of the Apex Court in the case of Anurag Patel (supra) which was the basis of the order passed by the Indore Bench in Gokul Prasad Ajameriya (supra) and Raneet Singar & ors. (supra) ?
(iii) While making appointment from the select list whether merit can be ignored when the appointment to a preferred post has to be made strictly in accordance with merits as per select list and appointment to a person higher in the select list 12 has to be given first appointment on the preferred post and the person lower in the list, will be given thereafter on the least preferred post ?
15. In view of the aforesaid obtaining factual matrix and the questions that have emerged for consideration, we are disposed to think that the maze has to be cleared from all spectrums and, accordingly, we think it apt to refer the matter to a Larger Bench for disposal of the matter.
16. Let the matter be placed before Hon'ble the Chief Justice on administrative side for constitution of a Larger Bench.
(Mohammad Rafiq) (Vijay Kumar Shukla)
Chief Justice Judge
ac.
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2021.09.20 17:59:20 +05'30'