Madhya Pradesh High Court
Harish Chandra Yadav vs The State Of Madhya Pradesh on 4 September, 2014
W.P.No.11421/2012
04.09.2014
Shri Mahendra Pateriya, learned counsel for the petitioner.
Shri Anubhav Jain, learned Panel Lawyer for respondents
No. 1 to 4.
Shri Parag Chaturvedi, learned counsel for the respondent No.7.
Shri Adarsh Muni Trivedi, learned senior Counsel assisted by Shri Anand Shukla, learned counsel for the respondent No.8.
This writ petition is restored in terms of the order passed by the Division Bench of this Court in writ appeal filed by Ku. Rekha Yadav being W.A.No.1096/2012, decided on 3.12.2013 and is directed to be listed before the writ Court for hearing. The said writ appellant was not a party to the writ petition and, therefore, by virtue of the order passed by the Division Bench after amending the writ petition, the said writ appellant has been made a respondent No.7 in the present writ petition. The companion writ petition is also filed by the very same respondent No.7 in the present case for the same relief, which could be considered in this writ petition itself.
In fact, the process of selection for appointment on the post of Panchayat Karmi was initiated by the Gram Panchayat Kalpi and an order of appointment was issued in respect of the petitioner herein. Since the said order was not acceptable, a litigation was brought by the respondent No.7 and ultimately, the Additional Commissioner by his order dated 10.7.2009 allowed the appeal of the respondent No.7, set aside the order of the Additional Collector Mandla, also set aside the order of appointment of the petitioner herein and remitted back the matter to the Gram Panchayat with a direction to consider the candidature of all the candidates who have applied pursuance to the advertisement issued by the Gram Panchayat and to make a fresh selection of the candidate for appointment on the post of Panchayat Karmi. Though the resolution said to be passed on 8.8.2007 was set aside, but it has to be held that to that extent, the order of the Additional Commissioner was not correct, inasmuch as, the resolution of the Gram Panchayat was not required to be set aside, as no power is available to the concerning authorities in this respect under the M.P. Panchayat (Appeal and Revision) Rules, 1995.
Essentially against the order of the Additional Commissioner, the petitioner approached this Court by way of filing W.P.No.7236/2009. The said writ petition was entertained and an interim stay was granted and that is how the petitioner remained working on the post. Ultimately, the said writ petition was dismissed by an order dated 24.11.2009, holding that the selection made in respect of the petitioner was not correct on account of his disqualification because of his conviction in the criminal case. The petitioner herein assailed the said order by filing a Writ Appeal No.1166/2009, which writ appeal too was dismissed vide order dated 30.11.2011. As a result, in fact, the order passed by the Additional Commissioner was to be given effect to.
It so happened that the Criminal Appeal No.854/2003 filed by the petitioner before this Court came to be decided by judgment dated 28.6.2012. The appeal was allowed, the petitioner was acquitted of the criminal charges. Treating as if this would nullify the effect of the order passed by the Additional Commissioner remitting back the matter or there would be no impediment now in respect of selection of the petitioner, the present writ petition was filed before this Court. The writ petition was disposed of on earlier occasion by an order dated 1.8.2012. Since the fact that the writ petition earlier filed was already decided and the writ appeal against such an order was dismissed, though mentioned in the writ petition, was not taken note of by the writ Court while passing the order on 1.8.2012 and since the affected person who obtained an order against the petitioner in the Court of Additional Commissioner was not impleaded as a party in the present writ petition at initial stage, the said person filed a Writ Appeal before this Court outcome of which is given in opening para above. This is how the writ petition has come before this Court for consideration.
The respondent No.7 herein has also filed Writ Petition No.6387/2014 seeking a direction against the respondent Gram Panchayat to remove the petitioner herein and to grant the appointment to the respondent No.7.
It is contended by learned counsel for the petitioner that when the facts were already mentioned in the writ petition, more particularly in paragraphs 5.3 and 5.4, there was no suppression of material facts and, therefore, the allegations made by the respondents that the material facts were suppressed by the petitioner are not sustainable. It is contended that once the petitioner is acquitted in the Criminal Appeal by this Court, the impediment alleged against him has wiped up and, therefore, he is entitled to continue in the employment on account of his selection.
Per contra, it is contended by learned counsel appearing for respondent No.7 that such a submission is not acceptable in view of the fact that the order of the Additional Commissioner setting aside the initial appointment of petitioner has already been affirmed by this Court on two occasions and, therefore, the petitioner would not be entitled to continue in the employment any longer. On the other hand, the petition is to be treated as misconceived one and is liable to be dismissed.
After hearing learned counsel for the parties at length and perusing the record, this Court is of the opinion that the order of the Additional Commissioner was to be implemented by the Gram Panchayat. It was not open to the petitioner to approach this Court by way of filing this writ petition because the order of the Additional Commissioner was already affirmed by this Court on two occasions, one by dismissing the writ petition against the said order and by affirming the order passed in the writ petition by the writ appellate Court. That being so, the course open to the petitioner was to represent before the Panchayat and to bring to the notice of the Panchayat all the events and to undergo the selection once again in terms of the direction of the Additional Commissioner. In such circumstances, if the selection would have been done and the petitioner would have been appointed again, that would have given a right to challenge the said order of appointment in appropriate manner before the appropriate forum by the aggrieved person. Otherwise also, once the order of Additional Commissioner was affirmed by this Court, a camouflage petition for the very same relief i.e. for quashment of the order of the Additional Commissioner in the garb of seeking a direction to continue the petitioner on the post could not have been filed. The writ petition is, therefore, held to be totally misconceived and ill-advised. The same deserves to be and is hereby dismissed.
The writ petition filed by the respondent No.7 being W.P.No.6387/2014 also stands disposed of.
Now the Panchayat will conduct the fresh selection taking into consideration the candidature of all the candidates, who have applied including the petitioner and the respondent No.7 in terms of the order of the Additional Commissioner and in that situation would also take into note of the fact the judgment of acquittal subsequently passed by this Court in Criminal Appeal filed by the petitioner. However, the candidature of the candidates, their eligibilities are to be examined as on the date of making of the application and not otherwise. Let this process be completed by the respondent Gram Panchayat within three months from the date of receipt of certified copy of the order passed today.
However in the facts and circumstances, there shall be no order as to costs.
(K.K.Trivedi) Judge A.Praj.