Madhya Pradesh High Court
Pallavi Shukla vs The State Of Madhya Pradesh And 3 Ors. on 23 January, 2015
W.P. No.1062/2011 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Before Single Bench: Hon'ble Mrs. Justice S.R. Waghmare
WP No.1062/2011
Pallavi Shukla
Vs.
State of MP and others
Mr. Brian De'Silva, learned Senior Counsel with Shri Amit
Upadhyay, learned Counsel for the petitioner.
Shri Mukesh Parwal, learned Counsel for the respondent
Nos.1 & 2/State.
Shri V.P. Khare, learned Counsel for the respondent No.3.
Shri Amit Singh Sisodiya, learned Counsel for the
respondent No.4.
ORDER
(Passed on 23/01/2015) Per Mrs. S.R. Waghmare, J.
This petition has taken up filed on remand by directions of the writ appellate Court in W.A. No.753/2013 on 17.02.2014.
02. Briefly stated the facts of the case are that the petitioner had answered advertisement published in the Rozgar Yojna on 11.08.2008, 18.08.2008 and 28.08.2008. A corrigendum was however issued in the month of August, 2010 to the said advertisement to include the vacancies for the post of Deputy Superintendent of Police of the Police Department. It would be pertinent to note that the W.P. No.1062/2011 2 petitioner is Master of Engineering and being eligible had filled the forms for selection. The main examination was held on 25.11.2009. The results were declared on 28.06.2010 and the interviews were held on 06.09.2010 and 26.10.2010. At the time of the interviews the candidates were required to exercise their option for the various posts available. The petitioner opted for the post of Deputy Superintendent of Police. The final results were declared on 28.10.2010 and the petitioners scored 1432 marks and found place in the select list by communication dated 24.12.2010. The petitioner Pallavi Shukla was called to undergo the medical examination and she was found fit for appointment, however, the select list was amended by the respondent No.3 MP PSC on 10.01.2011 and the petitioner was placed at Sl. No.1 in the waiting list and Mr. Alok Kumar Sharma was given the post of Deputy Superintendent of Police. The petitioner was however appointed as Joint Director, Revenue. Being aggrieved the petitioner filed the present petition challenging her exclusion from the select list being contrary to the statutory rules and principles of natural justice.
03. Respondent No.3 MP PSC countered the reply and took a stand that Mr. Alok Kumar Sharma and another W.P. No.1062/2011 3 candidate were both departmental candidate and their option/choice had been overlooked in the selection process and hence the amended list. By then, Shri Alok Sharma had, however, accepted the post of District Excise officer who had more marks than the present petitioner and had exercised his option for the post of Deputy Superintendent of Police which has been overlooked by the respondents.
04. During the pendency of the writ petition, it came about that one Shri Rakesh Singh Markan initially appointed to the post of Dy. S.P. was successful in the examination of the subsequent year 2009 and appointed as Deputy Collector and, therefore, vacated the post of Dy. S.P. The petitioner in turn, therefore, requested for appointment against the post of Mr. Rakesh Singh Markan on 28.03.2012 (Annexure P/19). It would be pertinent to point out that Mr. Rakesh Singh Markan as Deputy Collector has been appointed vide order dated 2.06.2012 and by communication dated 20.6.2012 the Home Department sought concurrence from MP PSC for appointing the petitioner against the vacant post from Mr. Rakesh Singh Markan. The MP PSC respondent No.3 by communication dated 25.06.2012 sought clarification from the State Govt. with regard to the date Mr. Rakesh Singh Markan had W.P. No.1062/2011 4 resigned as Dy. SP Annexure R-3/12-A. The MP PSC provided the clarification by communication letter dated 24.07.2012 Annexure R-3/23. It is this communication which has become the bone of contention between the parties since the State once again sought concurrence from the MP PSC by communication dated 03.08.2012.
05. Counsel for the petitioner placed reliance on Rekha Dhurve Vs. State of M.P. [2009(1) MPHT 284 :
2009(2) MPLJ 382] to state that the petitioner had also approached the respondents during, the validity period of the select list, and therefore, relief could not be declined to her on the ground the validity period of select list had expired during the pendency of the Writ Petition. In the said case the State Govt. was directed to consider the petitioner for appointment within a month, and held that the petitioner was entitled to appointment with retrospective effect from the date that respondent Nos.3 and 4 were appointed.
06. Counsel also placed reliance on State of U.P. vs. Ram Swarup [AIR 2000 SC 1097] to state that the direction given by High Court to fill in the vacancy available in the category of Scheduled Caste candidates in the order of merit from out of the waiting list; in a petition W.P. No.1062/2011 5 filed before expiry of the select list. The Court held that the list cannot be assailed on the ground that the select list has ceased to be valid on expiry of one year from the date of preparation thereof and an appointment from such list could not now be directed merely because a period of one year has elapsed during the pendency of litigation.
07. Counsel also relied on M.P. Public Service Commission Vs. State of MP and others in W.A. No.494/2010 whereby the Principal Seat of Jabalpur has held as follows:
"The next defence of the learned counsel for the Commission is that if any candidate out of the main merit list, who has been issued appointment letter, does not join only then a candidate from the supplementary list or waiting list can be recommended. But, if the candidate from the main list has joined and thereafter vacated the post, the supplementary list cannot be used for filling up for the vacancy. We have not been shown any logical reason for the distinction sought to be drawn by the Commission. We are therefore unable to uphold such distinction considering that the purpose of preparing a waiting list is to prevent avoidable delay in filing up post. The only exception is that the waiting list cannot be used to fill a vacancies which have not been advertised, which is not the case here.
In these circumstances, we do not find any merit in this appeal. It is accordingly dismissed."
08. Counsel also placed reliance on WP No.4643/08 W.P. No.1062/2011 6 (Vishal Meda Vs. State of M.P.) whereby this Court has held as follows:
"Resultantly, the writ petition is allowed. The MP Public Service Commission is directed to pass necessary orders in the matter of grant of extension of select list enabling the State Government to issue appropriate appointment order in case the petitioner as he is entitled for the same in accordance with his placement in the merit list / waiting list. Needless to mention that in case such an appointment is issued by the State Government, the petitioner shall be entitled for all consequential benefits including notional seniority, notional fixation of salary, grant of increments.
However, he shall not be entitled for backwages. M.P. Public Service Commission shall pass necessary orders and shall also recommend name of the petitioner for appointment keeping in view the merit list prepared by the MP Public Service Commission.
With the aforesaid this petition stands allowed. No order as to costs."
09. In view of the above, Counsel prayed that the petitioner may be granted appointment as she was entitled to the same being No.1 in the waiting list which has not expired, and she was selected for the post of Joint Director, Revenue and her claim also had been put in before the expiry of the validity of the wait list and in this light also placing reliance on the above said judgment in W.A. No.494/2010 (supra) the petition be allowed. W.P. No.1062/2011 7
10. Counsel for the respondent/MP PSC has vehemently opposed the contentions of the Counsel for the petitioner and stated that the validity of the list could have been extended only if the recruitment was for filling the backlog and it is considered in the case Vishal Meda (supra) cited above. This judgment is of no help to the petitioner since the present petition pertains to fresh appointments, and there was no backlog in the Police Department which was being fulfilled but it was for consideration of fresh appointments; undoubtedly, the candidature of Mr. Rakesh Singh Markan has fallen vacant during the pendency of the petition, but the same was not within the time of valid of the wait list; besides Counsel also urged that the State Govt. has not recommended the candidature of the present petitioner. This Court had also on two occasions directed the State Govt. to come out with some concrete proposal, and the same is not being done and in this view also the petitioners claim stands demolished. Undoubtedly Counsel submitted that the petitioner was wait list no.1, but the validity of the wait list and its period has to be considered. In this light the contentions cannot be considered. The respondent/PSC is undoubtedly bound by the findings by the Apex Court, but W.P. No.1062/2011 8 the same is not a case in the present petition. Counsel prayed that the petition was without merit and the same be dismissed. He relied on K. Thulaseedharan Vs. Kerala State Public Service Commission, Trivandrum and others [(2007)6 SCC 190] to state that the validity of period of list which has expired cannot be extended and Rules conferring power on State Public Service Commission, the Apex Court however held that the Commission has no power to extend validity which has already expired and merely because the Commission has done so in the previous cases would not constitute foundation for right to claim so in other cases.
11. Relying on Bihar Public Service Commission and others Vs. Kamini and others (2007) 5 SCC 519, Counsel stated that the Apex Court held that when an Expert Committee has fixed the qualification and eligibility of the candidates and if it takes the view that the respondent is not eligible for the post then such a decision of the Expert Committee cannot be said to be arbitrary or contrary to law.
12. Relying on Sanjoy Bhattacharjee vs. Union of India and others [AIR 1997 SC 2179] the Apex Court categorically considered that the direction sought for not to W.P. No.1062/2011 9 fill up of vacancies having arisen subsequently until the candidates in the waiting list are exhausted cannot be granted and the Tribunal rightly refused to grant any such direction.
13. Relying on Mohd. Sohrab Khan Vs. Aligarh Muslim University and others [(2009) 4 SCC 555] Counsel submitted that generally, decision of Selection Committee, which is an expert body, should be respected the fresh recruitment process by advertising the post and the opinion of the Selection Committee should be final and fresh recruitment process was directed to be undertaken by advertising the post again. The Court specifically held that the select list lapsed and second candidate in the select list could not claim appointment by virtue of his inclusion in the select list.
14. Relying on State of Orissa and another Vs. Rajkishore Nanda and others [(2010) 6 SCC 777] The Apex Court considered the proposed and utility selection in the recruitment process held that a select list cannot be treated as a (perpetual) resorvoir for the purpose of appointments. If selection process is over whereby select list has expired and appointments have been made, no relief can be granted by the Court subsequently on the W.P. No.1062/2011 10 basis of the expired list.
15. Finally relying on State of Bihar and others vs. Md. Kalimuddin and others [AIR 1996 SC 1145] the Apex Court held that Rule providing that select list shall be valid for one year from date of approval of the project by the Select Committee continues list beyond one year was illegal and even the high Court cannot continue list beyond one year unless its Constitutional validity is challenged.
16. Similarly in the matter of Girdhar Kumar Dadhich & another vs. State of Rajasthan and others [AIR 2009 SC 1899] held that the life of a select list ordinarily remains valid for one year. Counsel submitted that the question of granting admission to the petitioner does not arise on list. Counsel prayed for dismissal of the petition.
17. On considering the above submissions, I find that a sole question arises for adjudication is that whether the select list and the waiting list were valid/alive at the time when the petitioner sought appointment to the post of Dy. S.P. From perusing the submissions and the record (Annexure A/18) is the wait list and in the peculiar facts and circumstances of the case, the original select list W.P. No.1062/2011 11 issued by the M.P. Public Service Commission/respondent No.3 dated 28.10.2010, however, the list was subsequently amended by way of corrigendum since two institutional candidates respondent No.4 Alok Kumar Sharma and Shri Abhishek Tiwari, the Department candidates had protested that their option exercised had been overlooked. They were entitled to the same and the corrigendum or amended list was published by the M.P. Public Service Commission on 10.01.2011 almost 4 months later and it is this reason which gave opportunity to the petitioner to file a Writ Petition bearing No.1062/11 to be included in the select list of Dy. S.P. whereby she challenged her non-inclusion in the newly revised select list and the validity of the list so revised was challenged. The Writ Court held that the M.P. Public Service Commission was justified in refusing the select list and forwarding its recommendation to the State of MP and the petitioner, however, was not entitled to the inclusion in the revised list. Subsequently the petitioner filed a Writ Appeal before the Division Bench of this Court vide W.A. No.611/2011 whereby the petitioner sought to introduce an additional fact on record to raise question that since Shri Rakesh Singh Markan had vacated the post of Dy. S.P. since he was also selected on the post of Deputy W.P. No.1062/2011 12 Collector through the M.P. Civil Services Examination held in the year 2009 and the post of Dy. S.P. was vacated and whether the petitioner had right to be considered for the vacant post. The Writ Appellate Court, therefore, has remanded the matter back to this Court to reconsider this fresh event which had occurred subsequently and pass a judgment afresh.
18. It has also been contended before this Court that the Home Department has recommended the case of the petitioner to the M.P. P.S.C. on 20.06.2012 just two days after resignation tendered by Shri Rakesh Singh Markan. The letter is Annexure P/20 to this writ petition. It was also contended by the Counsel that the wait list was valid in terms of the decision passed by the Principal Seat at Jabalpur in Writ Appeal No.494/10. Therefore, the attitude of M.P. Public Service Commission for not forwarding its consent is creating impendiment in respect of joining of the petitioner according to the persistent submissions put forth by the Counsel for the petitioner.
19. Considering the submissions, the record and the arguments put forth by the Counsel for the respondent No.3/M.P. Public Service Commission, I find that it was obvious that the Public Service is not inclined to grant its W.P. No.1062/2011 13 consent, therefore, the vital issue to be considered is whether the waiting list was valid on the date of the representation of the petitioner on resignation tendered by Mr. Rakesh Singh Markan on 18.06.2012. Considering the ratio laid down in Writ Appeal No. 494/2010 (Annexure P/21) the Division Bench categorically held that the waiting list pertaining to vacancies advertised in the said advertisement issued by the M.P. Public Service Commission was valid for the period of 18 months. This fact has also been fortified by the letters issued by the Deputy Secretary, M.P. Home Department annexed along with the petition as Annexure P/19 which stated that from the date of first list i.e.29.11.2010; the wait list was valid up to 29.05.2011. However, since an amended list was subsequently issued on 01.10.2011, the wait list was also valid up to 01.07.2012. and in these terms, the representation of the petitioner was found to be well within the time period of the wait list. I fail to understand that if the original list has been amended due to leaving out the in-service candidates, the mistake was accepted by the State Govt. and duly corrected then why the benefit cannot be given to a meritorious candidate who apparently is at No.1 in the wait list. Similarly another seat has fallen W.P. No.1062/2011 14 vacant by the resignation of Mr. Rakesh Singh Markan and the Home Department was fully willing to consider the petitioner for the said post.
20. It is also noteworthy that it is not the contention of the respondent No.3/M.P. Public Service Commission that the petitioner had not applied for the post in the same advertisement (as per ratio of W.A. No.494/2010) or that the petitioner was not eligible for the post of Dy.S.P. and the entire career of meritorious candidate is at stake.
21. On minutely scrutinising the facts also this Court has come to the conclusion that the petitioner had first applied on 01.03.2012 to the Home Department for consideration of her appointment as Dy. S.P. in place of Shri Rakesh Singh Markan and a formal representation was also filed on 18.06.2012 well within the extended valid period of the wait list i.e.,01.07.2012. Then it cannot be said that an extension was required under the circumstances for extending the validity of the wait list further and in these circumstances, I find that the cases cited by the Counsel for the respondent/M.P. Public Service Commission are of no use to him.
22. Moreover the cases cited are of no help to the respondent No.3/M.P. Public Service Commission also W.P. No.1062/2011 15 primarily because Articles 14 & 16 of the Constitution of India guarantees to give equality to all the citizens and if the in-house candidates were included late in the select list and the select list duly amended; then, there is no reason why the present petitioner cannot be considered against a post lying vacant and in the light of the fact that a valid claim has been made by the petitioner well within the time. She has filed her representation immediately two days after the resignation of Shri Rakesh Singh Markan to the post Dy. Superintendent of Police. Her case has also been recommended by the Home Department and I do not find any good ground for rejecting her claim either on merits or the fact that the validity of the wait list had expired when actually the corrigendum or amended list would grant equal opportunity to the present petitioner also. In this light, I find that the petition needs to be allowed.
23. Consequently, the petition is allowed. The respondent No.3/M.P. Public Service Commission is directed to give appropriate directions to the Home Department for considering the candidature of the present petitioner/Pallavi Shukla to the post of Dy. S.P. if she is otherwise eligible for the post. Let the entire exercise be W.P. No.1062/2011 16 completed within a period of two months from the date of this order.
With the aforesaid observations and directions, the petition is allowed to the extent herein above indicated.
No costs.
CC as per rules.
(Mrs. S.R. Waghmare) Judge soumya