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Madhya Pradesh High Court

Narendra Singh Thakur vs The State Of Madhya Pradesh on 12 July, 2018

              HIGH COURT OF MADHYA PRADESH
                     R.P. No.1442-2017
             (Narendra Singh Thakur VS. State of M.P. & Ors.)


                                                             1

Gwalior, Dated : 12.07.2018
        Shri Sarvendra Kumar Singh, learned counsel for the petitioner.
        Shri Kamal Jain, learned Govt. Advocate for respondents No.1

& 2/State.

Shri Shashank Indapurkar, learned counsel for respondent No.3.

None for respondent No.4.

Shri Deepak Khot, learned counsel for respondent No.5. Review petitioner's contention is that he was not served, and therefore, there is delay of 77 days' in filing the present review petition. This fact has been contested by learned counsel for the original writ petitioner, who is respondent No.5 in this review petition, and he has produced alongwith his reply documents to show that this Court on 19.8.15 had passed an interim order directing any appointment made on the post of Compounder Ayurved pursuant to the advertisement during pendency of the writ petition shall be subject to the outcome of the writ petition. This order was communicated by him to the present review petitioner on his permanent address of Navrangpur Distt. Sehore, postal receipt is enclosed as Annexure R/5-1 dated 21.8.15. This was transmitted to the review petitioner and was delivered to the petitioner at his home address on 24.8.15 as is apparent from the delivery details furnished by India post. Similarly, respondent No.5 in this review petition had transmitted a copy of the interim order passed by the High Court dated 19.8.15 to the Government Ayurved Hospital, Ameerganj, Distt. Sehore where petitioner was posted on 4.9.15 and same was delivered on 7.9.15 as is certified by India post. Thus, learned counsel for respondent No.5 in this review petition points out that review petitioner had already information about pendency of the writ petition and he did not choose to appear, therefore, it cannot be said that he was prevented by any sufficient cause to appear before the High Court.

Learned counsel for the review petitioner has filed an affidavit HIGH COURT OF MADHYA PRADESH R.P. No.1442-2017 (Narendra Singh Thakur VS. State of M.P. & Ors.) 2 today in which it is mentioned that Annexure R/5-1 was dispatched at his permanent address of village Navrangpur, whereas it is not mentioned that who received the notice and he has no information about any such notice because he is posted at Ameerganj and as per Government Rules is residing at Ameerganj which is 120 Kms away from Navrangpur. Similarly, he has mentioned that Annexure R/5-2 is addressed to Government Ayurved Hospital and his name is not mentioned, therefore, service of Annexure R/5-2 cannot be deemed on the review petitioner. In view of such facts, he submits that he had no knowledge about pendency of the petition, and therefore, review petition be allowed.

The fact of the matter is that there is a certificate from India post showing service of notice on the permanent address of the petitioner, even petitioner has shown himself to be permanent resident of village Navrangpur Tahsil Astha Distt. Sehore in his affidavit which has been filed today.

Onus was on the petitioner to have produced a certificate of the family members who are residents of such permanent address that they had not received any such notice but no such certificate has been filed by the review petitioner. Further review petitioner's contention that Annexure R/5-2 is not addressed to him can be accepted because his name is not mentioned on the said communication. Therefore, looking to the totality of the facts and circumstances, delay in filing review petition is condoned and I.A.No.19050/17 is allowed. Review petition is allowed to the extent that review petitioner be provided an opportunity of hearing. Impugned order dated 31.8.17 is recalled and W.P. No.1185/2015 is restored to its original number. A copy of this order be kept in the record of W.P.No.1185/2015.

With the consent of parties, heard on W.P.No.1185/2015. Learned counsel for respondent No.4, who is review petitioner, is asked to address this Court as to the aspect of his eligibility HIGH COURT OF MADHYA PRADESH R.P. No.1442-2017 (Narendra Singh Thakur VS. State of M.P. & Ors.) 3 inasmuch as his registration as Compounder is admittedly of a date subsequent to the cut-off date. He is asked to show that when he was given registration number 12781 on 22nd August, 2013 i.e. after the cut-off date 24.7.13, then how he became eligible to participate in the selection process and to be placed in the merit list/waiting list. Learned counsel for respondent No.4 has made twin submissions; (i) he submits that committee had given permission to all such persons who had received registration after the cut-off date to participate in the selection process, and therefore, no fault can be attributed to his subsequent registration. He has also drawn attention of this Court to Annexure P/3 and points out that though petitioner is a permanent resident of Gwalior and had filed this petition showing himself to be resident of Gwalior, he has obtained a disability certificate from District Medical Board, Morena, showing himself to be the resident of Morena by furnishing an address 'C/o Rajesh Tiwari, New Housing Board Colony, Morena'. It is submitted that since petitioner is not a permanent resident of Morena, and therefore, District Medical Board Morena had no jurisdiction to grant him a disability certificate and that could have been granted only by District Medical Board, Gwalior.

Learned counsel for the writ petitioner on the other hand has placed reliance on the judgment of Division Bench of this Court in W.A.No.834/18 wherein order dated 31.8.17 was put to challenge as was passed in W.P.No.1185/15 and has pointed out that State had raised this issue before the Division Bench to assail the impugned order and the Division Bench after taking note of the proposal has categorically noted that proposal for relaxation was not accepted and has thus dismissed the plea of the State Government that persons who were given registration certificate after the cut-off date were also entitled to be granted appointment in terms of the provisions contained in Rule 8(2) of the M.P. Ayush Department (Clerical and Non-Clerical Class III) Service Recruitment Rules, 2013 which empowers the State Government in exceptional cases to recommend HIGH COURT OF MADHYA PRADESH R.P. No.1442-2017 (Narendra Singh Thakur VS. State of M.P. & Ors.) 4 a candidate to be treated as qualified, though not possessing the prescribed qualification, on the ground that there was no such relaxation by the State Government in regard to taking into consideration registration certificates issued after the cut-off date. Therefore, the first argument put forth by learned counsel for respondent No.4 has no merits and deserves to be dismissed and is dismissed. Once this argument on merits is dismissed, the order which was passed on 31.8.17 stands as it is with aforesaid addition of consideration on the submission of learned counsel for respondent No.4 as has been noted above. However, this Court had only directed that the respondents shall consider petitioner's case for appointment if there are no more meritorious candidates than the petitioner and if he fulfills all the necessary qualification as laid down in Annexure P/1. It is further clarified that this objection, as has been raised by learned counsel for respondent No.4 about validity of the disability certificate having been issued from Morena though petitioner is admittedly a permanent resident of Gwalior and had filled his application form from Gwalior giving his address of Gwalior, be also considered by the authorities as to whether rules permit obtaining such disability certificate from a neighbouring district when a person is not a permanent resident of that district.

Since this Court has dealt with the arguments raised by learned counsel for respondent No.4, this Court is of the opinion that order dated 31.8.17 be read as it is and this order be read in addition to the earlier order dated 31.8.17.

With the aforesaid, writ petition is disposed of.

(Vivek Agarwal) Judge ms/-