Madhya Pradesh High Court
Birendra Kumar Patel vs The State Of Madhya Pradesh on 14 September, 2017
1 W.P. No.15701/2006
HIGH COURT OF MADHYA PRADESH : JABALPUR
SB : HON'BLE MS. JUSTICE VANDANA KASREKAR.
Writ Petition No.15701/2006
Birendra Kumar Patel
Vs.
State of M.P. and Others
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Shri Sanjay Patel, learned counsel for the petitioner.
Ms. Vandana Shrivastava, learned Panel Lawyer for the
respondents no.1 to 4.
Shri A.D. Mishra, learned counsel for respondent no.12.
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ORDER
(14/09/2017) The petitioner has filed the present petition challenging the orders dated 28.04.2006 as well as 15.07.2002 passed by respondents no.2 and 4.
2. The petitioner is a post graduate degree holder in M.A. in English Literature. He voluntary participated in 'Padhna Badhna Andolan' without any Honrarium as social-service. For the said purposes, a certificate has also been issued in his favour 2 W.P. No.15701/2006 on 18.12.2000. The Janpad Panchayat Gunnor, District Panna published an advertisement inviting applications for appointment on the post of Samvida Shala Shikshak Grade-II and III. The petitioner applied for the post and in the said examination his 67.94 marks scored and, therefore, his name appeared at top of the select list of Samvida Shala Shikshak Grade-II in Science Faculty. The petitioner belongs to OBC category and the last person selected in the OBC category scored 42.02 marks and in General category last selected person scored 44.30 marks. On the basis of marks obtained by the petitioner he was appointed on the post of Samvida Shala Shikshak Grade-II vide order dated 20.09.2001 and since then he continued to work on the said post. On the basis of suo-moto enquiry, the Additional Collector Panna called the entire record of Selection Committee of the Janpad Panchayat Gunnor on the posts of Samvida Shala Shikshak Grade-II and III, in relation to the selected candidates and issued show cause notice to all the members as well as the selected candidates on the basis of some preliminary enquiry 3 W.P. No.15701/2006 report. The Additional Collector on the basis of the said enquiry has found that the appointment of the 5 candidates is in doubt. In the case of the petitioner, enquiry officer has found that the Padhna Badhna Certificate which is filed by the petitioner is invalid as his name not found in the register of Gram Panchayat Sarhanja, which is maintained for distribution of Honrarium. It is further submitted that in the case of the Mastram Sahu the marks obtained were deducted, but in the case of the Ku. Savita Sharma and Ram Nand Nayak who are selected for Samvida Shala Shikshak Grade-III, no such deduction were made. Similarly, in case of the Mastram Sahu, the matter was not handed over to the Police and his case was considered after deduction of five marks. Additional Collector applied different criteria for different persons situated similarly. The Additional Collector vide order dated 15.07.2002 has cancelled the appointment order of the petitioner on the ground that the Police case was registered against him for producing a false certificate of Padhna Badhna Andolan. Learned counsel for the petitioner 4 W.P. No.15701/2006 submits that the petitioner was worked as a Social Service in the Padhna Badhna Movement and for the said purpose he has not received any money or Honorarium for extending such social service and, therefore, the name of the petitioner does not appear in the register of distributing the Honorarium. It is further submitted that the petitioner is not a only person who has performed such social service without getting any Honorarium, but there are hundreds of other people who are performing such duties as social service. A certificate is duly signed by the Collector, Panna and then the Chief Minister of the State. Being aggrieved by the impugned order dated 15.07.2002, the petitioner preferred a revision before the Additional Commissioner, Sagar Division Sagar. The Commissioner initially stayed the impugned order dated 15.07.2002 by the order dated 24.07.2002. Thereafter respondent no.2 has passed an order dated 28.04.2006 thereby dismissing the revision preferred by the petitioner. Being aggrieved by that order, the petitioner has filed a revision before the Board of Revenue, Gwalior, however, 5 W.P. No.15701/2006 the said revision is dismissed by the Board of Revenue as not maintainable. Being aggrieved by the orders dated 28.04.2006 and 15.07.2002, the petitioner has filed the present petition.
3. Learned counsel for the petitioner argues that the preliminary enquiry which was held behind the back of the petitioner without supplying copy to him. He further submits that the last candidates in the General category, who was selected was having 44.30 marks; whereas the petitioner belonging to OBC category was selected by scoring 67.94 marks (25.61 marks in qualifying test, 12.23 marks in Interview and 30 marks in experience). As per the rules for Padhna Badhna certificate only 5 marks are provided thus even if the 5 marks awarded to the petitioner on account of Padhna Badhna were deducted then also the petitioner got higher marks in the merit list. He further submits that so far as a complaint against the petitioner has been made to the Police on the allegation that the petitioner has used a forged certificate. He submits that during pendency of the said writ petition, the petitioner was acquitted by the trial Court 6 W.P. No.15701/2006 vide judgment dated 16.01.2010 and against which no appeal has been preferred by the State. He further submits that the Additional Collector has acted discriminatory in the matter. In the case of Mastram Sahu his name also not found in the Honorarium list of Gram Panchayat, 5 marks granted on that count were deducted and it was seen whether after such deduction he could still remain in the select list or not and no police case was directed to be registered against him. Thus, the approach of the Additional Collector was absolutely arbitrary discriminatory and unreasonable. The Commissioner also dismissed the appeal preferred by the petitioner by non-speaking order
4. Respondents no.1 to 4 have filed their reply and in their reply they have submitted that the Janpad Panchayat Gunnor made appointment on the post of Samvida Shala Shikshak Grade-II and III in the year 2001. The petitioner was also appointed as Samvida Shala Shikshak Grade-II vide order dated 11.09.2001. On enquiry conducted by the Committee it 7 W.P. No.15701/2006 was found that the serious irregularities were committed in the process of selection and appointment of Samvida Shala Shikshak Grade-II and III by Janpad Panchayat Gunnor. The Collector, Panna, therefore, took up the matter in the suo-moto revision by exercising powers under Rule 5 of the M.P. Panchayat (Appeal and Revision) Rules 1995. Notices were issued to all the members of the Selection Committee as also the persons who were appointed including the petitioner. After affording reasonable opportunity of hearing to the petitioner and after considering the records, the Collector found that the petitioner was granted appointment on the basis of certificate submitted by him regarding experience of teaching in Padhna Badhna Scheme. It was found in the list prepared by the Village Panchayat regarding distribution of Honorarium the name of the petitioner did not figure. The petitioner have been awarded 25 marks towards experience on the basis of the said certificate and if the said marks are reduced from over all marks secured by the petitioner, then the name of the petitioner would not figure in 8 W.P. No.15701/2006 the list of selected candidates. The Collector, therefore, passed an order on 15.07.2002 whereby appointment of the petitioner was set aside. Being aggrieved by the order passed by the Collector, the petitioner filed revision before the Additional Commissioner, Sagar Division. The revisional authority also examined the matter on merits and found that the petitioner had secured place in the select list. On the basis of Padhna Badhna certificate which was reported to be forged and the matter was enquired by the local police, therefore, the revisional authority vide order dated 28.04.2006 has dismissed the revision. Thus, the authorities have rightly concluded that since the name of the petitioner did not appear in the list of persons appointed by the Village Panchayat under the Padhna Badhna Andolan, the petitioner was not entitle to claim the benefit of the said experience.
5. Respondent no.5 has also filed the reply and adopted the reply filed by the respondents no.1 to 4.
9 W.P. No.15701/2006
6. The petitioner has filed the rejoinder and denied the allegations made in the return. The petitioner has denied that the 30 marks were prescribed from 'Padhna Badhna' experience. He submits that in the M.P. Panchayat Samvida Shala Shikshak (Nigakti Avam Sewa Sharten) Niyam 2001, Rule 5 (hereinafter referred to as 'the Rules') provides for the process of selection and recruitment. Clause 8(1)(Ga) provides for awarding 5 per cent marks for Padhna Badhna Moment. It is further submitted that on the allegation that the Padhna Badhna Certificate submitted by the petitioner is forged, a criminal case was registered against the four persons including the petitioner and a charge-sheet was filed in the Court of Judicial Magistrate Class-I, Panna. In the said case, learned JMFC vide order dated 16.09.2010 has acquitted the petitioner and the State has also not preferred any appeal against the said acquittal. It has further been submitted that the 30 marks awarded to the petitioner on account of over all teaching experience and not only for Padhna Badhna Certificate. It is further submitted that by the order 10 W.P. No.15701/2006 dated 03.12.1996 the petitioner was appointed as Samvida Shala Shikshak Grade-III by the Janpad Panchayat Gunnor, District Panna and was appointed in such a Government Primary School Tedha where he served upto 03.02.1999. That as per the Clause-8(1)(kha) of the Rules of 2001, 25 marks were provide for the aforesaid experience. It were those 25 marks, out of total 30 marks awarded to the petitioner for his three years experience as Samvida Shala Shikshak Grade-III in the year 1996-97, 1997-98 and 1998-99 and not for the Padhna Badhna Certificate has stated by the respondents.
7. I have heard learned counsel for the parties and perused the record. The Janpad Panchayat Village Gunnor has invited applications for appointment on the post of Samvida Shala Shikshak Grade-II and III. The petitioner has applied for appointment on the post of Samvida Shala Shikshak Grade-II in the said examination. The petitioner has secured 67.94 marks in the said examination and his name appeared at the top of the selected list. The petitioner belonging to the OBC category and 11 W.P. No.15701/2006 the last person selected in OBC category secured 42.02 marks and thereafter certain complaints were made against the said selection, therefore, the committee was appointed and on the basis of the enquiry made by the committee, the Additional Collector by exercising the suo-moto power has called the entire record of the selection committee of Janpad panchayat, Gunnor and thereafter issued notice to all the members of the selection committee as well as the petitioner and thereafter cancelled the appointment of the petitioner. Vide order dated 15.07.2002 on the ground that the Padha Badhna Certificate which is produced by the petitioner is forged as his name does not found in the register of Gram Panchayat Sarhanja for Honorarium distribution and the matter was also reported to the Police. Being aggrieved by the order passed by the Additional Collector, the petitioner has preferred a revision before the Additional Commissioner. The Additional Commissioner vide order dated 28.04.2006 has dismissed the said revision. The Rules of appointment of the Samvida Shala Shikshak Grade-II and III provides for the 12 W.P. No.15701/2006 process and selection and recruitment as per the Clause 8(1) (ga), 5 per cent marks were allotted for Padhna Badhna Andolan which read as under-:
"fu;e 5¼8½ ¼8½ ¼,d½ lfefr vH;kfFkZ;ksa dk vkdyu djsxh rFkk fuEufyf[kr jhfr ds vad nsxh %& ¼x½ ,sls v/;kidksa dks ftUgksus i<+uk&c<+uk vkUnksyu ds vUrxZr de ls de 5 fuj{kj O;fDr;ksa dks lk{kkj cuk;k gS] mUgsa 5 izfr'kr vad fn;s tk;saxs] c'krsZ fd fuj{kjksa us fofgr VsLV mRrh.kZ fd;k gksA ;s vad dysDVj ds }kjk tkjh fd;s x;s izek.k i= ds vk/kkj ij fn;s tkosaxsA"
The 30 marks were reserved for experience and the petitioner has awarded 25 marks towards the experience. The Clause (8)(1)(kha) of the Rules prescribes the total 25 marks for the aforesaid experience as under.
13 W.P. No.15701/2006
¼8½ ¼,d½ lfefr vH;kfFkZ;ksa dk vkadyu djsxh rFkk fuEufyf[kr jhfr esa vad nsxh%& ¼[k½ ml iapk;r ds ftls vkosnu i= fn;k x;k gks ds {ks=kf/kdkj ds Hkhrj fLFkfr Ldwyksa esa v/;kiu ds vuqHko ds fy;s vf/kdre 25 izfr'kr vad fn;s tk;saxsA ,d o"kZ] nks o"kZ ,oa rhu o"kZ ds vuqHko ds fy;s dze'k% 15 izfr'kr] 20 izfr'kr ,oa 25 izfr'kr vad fn;s tk;saxsA ,d o"kZ esa 8 ekg dh vfof/k dk vuqHko 1 o"kZ dk vuqHko ekuk tkosxkA-----
9. The petitioner is having experience of teaching as Samvida Shala Shikshak Grade-III in the Government Primary School Bhatago District Panna as well as for teaching as Samvida Shala Shikshak Grade-III in the Government Primary School Tedha, District Panna since 1996-97, 1997-98 and 1998-99. Thus, the total marks awarded to the petitioner towards experience is 25.61, towards his qualifying education degree, 14 W.P. No.15701/2006 12.33 marks towards for interview and 30 marks for experience which includes 25 marks for his teaching experience as a Samvida Shala Shikshak Grade-III and 5 marks for Padhna Badhna Certificate. Thus, the total marks which is secured by the petitioner is 67.94 marks. Even if experience of 'Padhna Badhna' and 5 marks counted for the same are deducted from the total marks, it would come to 62.94, whereas the last person in OBC secured 42.02 and in General category 44.30 marks. Thus, the selection of the petitioner could not have been cancelled as despite of deduction of those 5 marks of 'Padhna Badhna', the petitioner secured highest marks in the merit list. The Court of Judicial Magistrate has also not found the 'Padhna Badhna' certificate as a forged certificate and has acquitted the petitioner against which no appeal has been filed by the State Government.
10. Thus, the action of the respondents in deducting entire 30 marks of the experience is arbitrary and without any application of mind. The Collector as well as the Commissioner has failed to apply their mind to the facts of the case. 15 W.P. No.15701/2006
11. Consequently, the writ petition is allowed and the impugned orders dated 28.04.2006 and 15.07.2002 are hereby set aside.
(MS. VANDANA KASREKAR) JUDGE Tabish 16 W.P. No.15701/2006