Madhya Pradesh High Court
Ku. Vibha Sharma vs The State Of Madhya Pradesh on 7 March, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 7 th OF MARCH, 2024
WRIT PETITION No. 14753 of 2018
BETWEEN:-
VIRENDRA SINGH PARIHAR S/O SHRI BABULAL SINGH
PARIHAR, AGED ABOUT 62 YEARS, OCCUPATION:
ADVOCATE ARJUN NAGAR , SIDHI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI GAURAV MAHESHWARI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY SCHOOL EDUCATION
DEPARTMENT MANTRALAYA VALLABH BHAWAN
(MADHYA PRADESH)
2. COLLECTOR SIDHI DIST. SIDHI (MADHYA
PRADESH)
3. RAJESH KUMAR SAHU S/O SHRI RAM DULARE
SAHU OCCUPATION: THROUGH JANPAD
PANCHAYAT RAMPUR NAIKIN VILLAGE KOSHTA
PO BADUSAD DITT. SIDHI (MADHYA PRADESH)
4. VIBHA SHARMA D/O SHRI TULSIDAS SHARMA
OCCUPATION: THROUGH JANPAD PANCHAYAT
RAMPUR NAIKIN DISTT. SIDHI (MADHYA
PRADESH)
5. SATISH KUMAR PANDEY S/O SHRI SHYAM
SUNDER PANDEY OCCUPATION: THROUGH
JANPAD PANCHAYAT RAMPUR NAIKIN DISTT.
SIDHI (MADHYA PRADESH)
6. DEEPA PANDEY D/O SHRI R.P PANDEY
OCCUPATION: THROUGH JANPAD PANCHAYAT
RAMPUR NAIKIN DISTT. SIDHI (MADHYA
PRADESH)
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 11-03-
2024 18:42:33
2
.....RESPONDENTS
(STATE BY SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE)
(RESPONDENT NOS.5&6 BY SHRI K.C.GHILDIYAL - SENIOR ADVOCATE
ASSISTED BY SHRI ADITYA VEER SINGH - ADVOCATE)
WRIT PETITION No. 11019 of 2019
BETWEEN:-
RAKESH PANDEY S/O SHRI GANESH MANI PANDEY,
AGED ABOUT 52 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE SAGAUNI POST BHARATPUR
TEHSIL RAMPUR NAIKIN DISTT. SIDHI (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI KABEER PAUL - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.
PRINCIPAL SECRETARY SCHOOL EDUCATION
DEPARTMENT MANTALAYA VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
COMMISSIONER REWA, REVENUE DEPARTMENT
DISTT REWA MP (MADHYA PRADESH)
3. STATE OF MADHYA P R A D E S H THROUGH
COLLECTOR SIDHI DISTT SIDHI MP (MADHYA
PRADESH)
4. SHANKUNTALA PANDEY W/O SHRI RAJESH
PANDEY, AGED ABOUT 42 YEARS, VILLAGE
RAIDUARIYA KALA TEHSIL RAMPUR NAIKIN
DISTT SIDHI MP (MADHYA PRADESH)
.....RESPONDENTS
(STATE BY SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE)
WRIT PETITION No. 12280 of 2019
BETWEEN:-
KU. VIBHA SHARMA D/O TULSIRAM SHARMA, AGED
ABOUT 40 YEARS, OCCUPATION: TEACHER VILLAGE
GADARA POST RAIDUARIYA TEHSIL RAMPUR NAIKIN
(MADHYA PRADESH)
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 11-03-
2024 18:42:33
3
.....PETITIONER
(BY SHRI PUSHPENDRA DUBEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR ITS
SECRETARY VALLABH BHAWAN (MADHYA
PRADESH)
2. COMMISSIONER REWA DIVISION REVENUE
DEPARTMENT DISTT-REWA (MADHYA PRADESH)
3. C O L L E C T O R S I D H I DISTT-SIDHI (MADHYA
PRADESH)
4. SHAKUNTALA PANDEY W/O SHRI RAJESH
PANDEY, AGED ABOUT 42 YEARS, R/O VILLAGE
RAIDUARIYA, TAHSIL RAMPUR NAIKIN
(MADHYA PRADESH)
.....RESPONDENTS
(STATE BY SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE)
WRIT PETITION No. 12283 of 2019
BETWEEN:-
RAJESH KUMAR SAHU D/O RAMDULARE SAHU, AGED
ABOUT 35 YEARS, OCCUPATION: TEACHER R/O
VILLAGE KOSTHA POST BADHOKHAR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI AMILESH CHATURVEDI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR
SECRETARY VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THR.
COMMISSIONER REWA, REVENUE DEPARTMENT
(MADHYA PRADESH)
3. STATE OF MADHYA PRADESH THR. COLLECTOR
DISTT-SIDHI (MADHYA PRADESH)
Signature Not Verified
4. SHAKUNTALA PANDEY W/O SHRI RAJESH
Signed by: AMIT JAIN
Signing time: 11-03-
2024 18:42:33
4
PANDEY, AGED ABOUT 42 YEARS, R/O VILLAGE
RAIDUARIYA KALA, TEHSIL RAMPUR NAIKIN
(MADHYA PRADESH)
.....RESPONDENTS
(STATE BY SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE)
WRIT PETITION No. 13035 of 2019
BETWEEN:-
1. MAAN SINGH UIKEY S/O MANGAL SINGH, AGED
ABOUT 61 YEARS, OCCUPATION: BLOCK
EDUCATION OFFICER R/O VILALGE TIKARI POST
TIKARI TEHSIL MAJHAULI (MADHYA PRADESH)
2. RAI SINGH S/O SHRI MANBODHA SINGH, AGED
ABOUT 67 YEARS, OCCUPATION: FORMER
DISTRICT EDUCATION OFFICER SIDHI R/O
VILLAGE HARFARI, POST BAIRDAH (MADHYA
PRADESH)
3. PANDA RAM PADWAR S/O SHRI BHAIYALAL
PADWAR, AGED ABOUT 67 YEARS, OCCUPATION:
FORMER CHIEF EXECUTIVE JANPAD PANCHAYAT
RAMPUR NAIKIN SIDHI R/ VILLAGE KHETGAON,
POST LAMSARI, TEHSIL PUSHPRAJGARH
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI PRAVESH NAVERIYA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR
PRINCIPAL SECRETARY VLLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THR.
C O M M I S S I O N E R DISTT-REWA (MADHYA
PRADESH)
3. STATE OF MADHYA PRADESH THR. COLLECTOR
DISTT-SIDHI (MADHYA PRADESH)
4. SHAKUNTALA PANDEY W/O SHRI RAJESH
PANDEY, AGED ABOUT 42 YEARS, R/O VILLAGE
RAIDURIYA KALA, TEHSIL RAMPUR NAIKIN
(MADHYA PRADESH)
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 11-03-
2024 18:42:33
5
.....RESPONDENTS
(STATE BY SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE)
WRIT PETITION No. 13633 of 2019
BETWEEN:-
KUMUD KUMAR SHUKLA S/O LATE SHRI RAMPAL
SHUKLA, AGED ABOUT 63 YEARS, OCCUPATION: FORM
EDUCATION DEPARTMENT SINGRAULI R/O VILALGE
TITRA SHULLAN POST OFFICE MADAN P.S., RAMPUR
NAIKIN (MADHYA PRADESH)
.....PETITIONER
(BY SHRI K.K.PANDEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR
PRINCIPAL SECRETARY VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. COMMISSIONER REVENUE DEPARTMENT REWA
DIVISION (MADHYA PRADESH)
3. C O L L E C T O R S I D H I DISTT-SIDHI (MADHYA
PRADESH)
4. SUPERINTENDENT OF POLICE, SIDHI DISTT-SIDHI
(MADHYA PRADESH)
5. POLICE STATION RAMPUR NAIKIN THR. ITS SHO
DISTT-SIDHI (MADHYA PRADESH)
6. SHAKUNTALA PANDEY W/O SHRI RAJESH
PANDEY, AGED ABOUT 42 YEARS, R/O VILLAGE
RAIDURIYAKALA, TAHSIL RAMPUR (MADHYA
PRADESH)
.....RESPONDENTS
(STATE BY SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE)
WRIT PETITION No. 13808 of 2019
BETWEEN:-
KUMUD KUMAR SHUKLA S/O LATE SHRI RAMPAL
SHUKLA, AGED ABOUT 63 YEARS, OCCUPATION:
RETIRED FROM EDUCATION DEPTT. SINGRAULI R/O
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 11-03-
2024 18:42:33
6
VILLAGE , TITRA SHULLAN, POST OFFICE MADNA, P.S.
RAMPUR NAIKIN, DISTT. SIDHI (M.P.) (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI K.K.PANDEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR. ITS
PRINCIPAL SECRETARY EDUCATION DEPTT.
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. COMMISSIONER REVENUE DEPARTMENT REWA
DIVISION REWA (MADHYA PRADESH)
3. COLLECTOR SIDHI SIDHI (MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE POLICE
H EA D Q U A R TER S DISTT. SIDHI (MADHYA
PRADESH)
5. SHO POLICE HEADQUARTERS PS RAMPUR
NAIKIN SIDHI (MADHYA PRADESH)
6. SHAKUNTALA PANDEY W/O RAJESH PANDEY,
AGED ABOUT 42 YEARS, VILLAGE
RAIDURIYAKALA TEHSIL RAMPUR (MADHYA
PRADESH)
.....RESPONDENTS
(STATE BY SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE)
WRIT PETITION No. 14523 of 2019
BETWEEN:-
RAMSHANKAR MISHRA S/O LATE SHRI VAIDYANATH
PRASAD MISHRA, AGED ABOUT 64 YEARS,
OCCUPATION: RETIRED PUBLIC SERVANT VILLAGE
BARA PATIYA POST CHANDWAR TEHSIL DEVSAR
DISTT. SINGRAULI (MADHYA PRADESH)
.....PETITIONER
(BY SMT.SANJANA SAHNI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 11-03-
2024 18:42:33
7
PRINCIPAL SECRETARY SCHOOL EDUCATION
DEPARTMENT MANTRALAYA VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. STATE OF M.P. COMMISSIONER REVENUE DEPT.
DISTT. REWA (MADHYA PRADESH)
3. STATE OF M.P. THROUGH COLLECTOR DISTT.
SIDHI (MADHYA PRADESH)
4. SHAKUNTALA PANDEY W/O SHRI RAJESH
PANDEY, AGED ABOUT 42 YEARS, VILLAGE
RAIDUARIYA KALA TEH. RAMPUR NAIKIN
(MADHYA PRADESH)
.....RESPONDENTS
(STATE BY SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE)
These petitions coming on for admission this day, the court passed the
following:
ORDER
The matter be taken up on 7.3.2024 at 12:00 PM.
The Reader of this Court is directed to call for the rejoinder. The matter is again taken up on 7.3.2024 at 12:00 PM.
The written arguments said to have been filed today, are not available on record.
With the consent of learned counsel for the parties, the matter is finally heard and the order is dictated in Open Court.
1. Writ Petition No.14753/2018, Writ Petition No.11019/2019, Writ Petition No.12280/2019, Writ Petition No.12283/2019, Writ Petition No.13035/2019, Writ Petition No.13633/2019, Writ Petition No.13808/2019 & Writ Petition No.14523/2019 are filed by various petitioners, which need to be elaborated with a view to have clarity in the matter of facts.
2. Writ Petition No.14753/2018 is a petition filed by Petitioner Virendra Singh Parihar and it is in the nature of quo warranto with regard to the Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 8 appointment of the private respondent Nos.3 to 6, who were given appointment on the post of Samvida Shala Shikshak Grade-II/Grade-III. Petitioners' contention is that there is a provision for appointment of Samvida Shala Shikshak Grade-II/Grade-III on the basis of eligibility test by issuing an advertisement inviting application from all eligible candidates but in the present case dehors the procedure, provision was not followed as is apparent from Annexure P/2, which is a reply furnished by the State Government to Question No.3560 put by one Shri Sunder Lal Tiwari in the Madhya Pradesh Legislative Assembly. In reply to the said question, it was replied by the State Government that in Janpad Panchayat Rampur Naikin, in the year 2011, 4 persons were given appointment as Samvida Shala Shikhak Grade-III. No advertisement was issued. Four applications were received. Merit list was not prepared. All four persons were given appointment orders and the information is kept in the Library. The matter is pending in the Court of learned Commissioner, Rewa Division, Rewa. The Chief Executive Officer, Janpad Panchayat, has been appointed to place the facts before the Commissioner. In reply to the Part-C, it has been answered that neither any approval was obtained from the District Panchayat, Sidhi nor concerned Committee had given any approval and the appointments were made without approval. In view of such answers, which were furnished by the concerned Minister before the Madhya Pradesh Legislative Assembly, namely, Shri Kunwar Vijay Shah, Writ Petition No.14753/2018 is filed by petitioner Virendra Singh Parihar challenging the order of appointment of the private respondent Nos.3 to 6.
3 . Shri Pushpendra Dubey, learned counsel appearing for Petitioner Kumari Vibha Sharma in Writ Petition No.12280/2019 and the Respondent No.4, Shri Amilesh Chaturvedi, learned counsel appearing for Petitioner Rajesh Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 9 Kumar Sahu in Writ Petition No.12283/2019 and the Respondent No.3, Shri K.C.Ghildiyal, learned Senior Counsel assisted by Shri Aditya Veer Singh, learned counsel for Respondent Nos.5&6, namely, Satish Kumar Pandey & Ms.Deepa Pandey in Writ Petition No.14753/2018, submit that besides adopting arguments put forth by Shri Kabeer Paul, learned counsel appearing for Petitioner Rakesh Pandey in Writ Petition No.11019/2019, who was at the given point of time President of the Education Society, they would like to point out that the respondent Nos.3&4 had passed the eligibility test. The Revisionist before the Divisional Commissioner, namely, Smt.Shakuntala Pandey had moved an application for withdrawal of the Revision as Writ Petition No.14753/2018 was pending before the High Court. The writ of quo warranto will not be applicable in the case of Class-III or Class-IV employees and to support their contention, reliance is placed on the decision of a Coordinate Bench of this Court in Writ Petition No.6608/2020 (Ravishankar Chouksey versus State of Madhya Pradesh & Others) decided on 19.7.2021 wherein it is held that a Class-III/Class-IV person does not hold "Public Office" as defined in the Black's Law Dictionary and no writ challenging the appointment on compassionate ground of Class-IV post can be made, therefore, writ of quo warranto cannot be granted.
4. It is submitted by Shri K.C.Ghildiyal, learned Senior Counsel for respondent Nos.5&6 in Writ Petition No.14753/2018 that their appointment being contractual, is not amenable to the writ of quo warranto and to support this contention, reliance is placed on the judgments of the Apex Court in Retired Armed Forces Medical Association & Others versus Union of India & Others (2006) 11 SCC 731 (1) and B.Srinivasa Reddy versus Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 10 Karnataka Urban Water Supply & Drainage Board Employees' Association & Others (2006) 11 SCC 731 (II).
5. Placing reliance on Paragraph No.43 of the judgment in B.Srinivasa Reddy versus Karnataka Urban Water Supply & Drainage Board Employees' Association & Others (supra), Shri K.C.Ghildiyal submits that where a writ of quo warranto lies to challenge an appointment made "until further orders" on the ground that it is not a regular appointment? Whether the High Court failed to follow the settled law that a writ of quo warranto cannot be issued unless there is a clear violation of law? The order appointing the appellant clearly stated that the appointment is until further orders. The terms and conditions of the appointment made it clear that the appointment is temporary and is until further orders. In such a situation, the High Court in our view erred in law in issuing a writ of quo warranto. The rights under Article 226 of the Constitution of India, which can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus.
6. Shri K.C.Ghildiyal, learned Senior Counsel assisted by Shri Aditya Veer Singh, learned counsel for respondent Nos.5&6 submits that writ of quo warranto is not maintainable but despite the oral submission of respondent Nos.5&6 too had passed eligibility test admits that there is no documentary evidence available on record to substantiate the aforesaid argument.
7. Shri Gaurav Maheshwari, learned counsel for Petitioner Virendra Singh Parihar in Writ Petition No.14753/2018 counters the arguments put forth by Shri K.C.Ghildiyal, learned Senior Counsel for Respondent Nos.5&6, by placing reliance on the judgment of the Apex Court in Rajesh Awasthi versus Nand Lal Jaiswal & Others (2013) 1 SCC 501 and reading Paragraph No.19, he submits that writ of quo warranto will lie when appointment is made contrary to Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 11 the statutory provisions.
8. Before entering into the submissions of learned counsel appearing for the other petitioners as well as learned counsel for the respondents, it will be necessary to clarify that the appointment of a Samvida Shala Shikshak is under the statutory provisions, namely, the Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules 1997, which were repealed in the year 2001 and replaced with another set of statutory Rules, namely, the Madhya Pradesh Panchayat Samvida Shala Shikshak (Appointment and Conditions of Contract) Rules, 2001 and, therefore, the submission made by Shri K.C.Ghildiyal, learned Senior Counsel, who has left the Court in between and the reliance placed on the judgment of the Apex Court in Retired Armed Forces Medical Association & Others versus Union of India & Others (supra) is not made out from record and since the appointments of the private respondents are under the statutory rules, therefore, the judgment of B.Srinivasa Reddy versus Karnataka Urban Water Supply & Drainage Board Employees' Association & Others (supra) has no application to the facts of the present case, therefore, challenge to the maintainability of the writ only on the ground of appointment being made as a stop gap arrangement is not available inasmuch as appointment of the private respondents is neither stop gap arrangement nor the appointments have been made until further orders and infact the appointments are supposed to have been made under the provisions of the statutory rules.
9. Shri Kabeer Paul, learned counsel appearing for Petitioner Rakesh Pandey in Writ Petition No.11019/2019 submits that the petitioner had admittedly made recommendations after scrutiny of the record in the capacity Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 12 of the President of the Education Society & forwarded the documents to the competent authority. As per Rule 3 of the Madhya Pradesh Panchayats (Appeal & Revision) Rules, 1995, there is a provision under Clause-D, which provides that in case of an order passed by the Panchayat specified in Column (1) of the Table - to the authority specified in the corresponding entry in Column (2) thereto. Shri Kabeer Paul submits that the order of Janpad Panchayat is appealable before the Collector and, therefore, the Commissioner was not authorised to hear and decide revision.
10. Shri Kabeer Paul, learned counsel appearing for Petitioner Rakesh Pandey in Writ Petition No.11019/2019 placing reliance on Rule 5(1)(a) of the Madhya Pradesh Panchayats (Appeal & Revision) Rules, 1995 submits that the State Government, the Commissioner, the Director of Panchayat, the Collector, may on its/his own motion or on the application by any party, at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceedings of, the authorities subordinate to it/him, call for and examine the record of any case pending before or disposed of by such authority and may pass such orders in reference thereto as it/he may think fit: Provided that it/he shall not vary or reverse any order unless notice has been served on the party interested and opportunity given to them for being heard: Provided further that no application for revision shall be entertained against an order appealable under the Act.
11. Shri Kabeer Paul, learned counsel appearing for Petitioner Rakesh Pandey in Writ Petition No.11019/2019 submits that the order dated 27.5.2019 could not have been passed by the Commissioner directing the authorities to register an FIR against the persons, namely, Shri Rakesh Pandey, Shri Man Singh Uikey, Shri Kumud Kumar Shukla, Shri Ramshankar Mishra, who are Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 13 petitioners before this Court without giving them an opportunity of hearing and secondly since the order of Janpad Panchayat is appealable in terms of the provisions as contained in Rule 3 before the Collector, that authority could not have been usurped by the Commissioner in hearing the revision. Shri Kabeer Paul submits that revision is not maintainable and there could not have been any direction to lodge an FIR against the private persons or the petitioners.
12. Reliance is placed by Shri Kabeer Paul on Paragraph No.22 of the judgment of the Apex Court in Hasham Abbas Sayyad versus Usman Abbas Sayyad & Others (2007) 2 SCC 355 wherein it is held that "the core question is as to whether an order passed by a person lacking inherent jurisdiction would be a nullity. It will be so. The principles of estoppel, waiver and acquiescence or even res judicata, which are procedural in nature would have no application in a case where an order has been passed by the Tribunal/Court, which has no authority in that behalf. Any order passed by a Court without jurisdiction would be corram non judice, being a nullity, the ordinarily should not be given effect to. [See Chief Justice of A.P. versus L.V.Adixitulu & M.D, Army Welfare Housing Organisation versus Sumanal Services (P) Limited] (2004) 9 SCC 619.
13. Shri Kabeer Paul also places reliance on the judgment of a Coordinate Bench of this High Court in Virendra Kumar Tripathi versus State of Madhya Pradesh Through Secretary, Department of Corporation, Vallabh Bhawan, Bhopal & Others 2022 SCC Online MP 3994 to submit that without arriving at a finding of irregularity in operation of fair price shop, no order could have been passed to register an FIR. He also places reliance on the Division Bench Judgment of this High Court in Monika Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 14 Waghmare versus State of Madhya Pradesh & Others ILR 2019 MP 1581 to point out that Smt.Shakuntala Pandey, who was a revision petitioner before the Commissioner, had no locus to file that revision before the Commissioner.
14. Shri Kabeer Paul places reliance on Paragraph Nos.34 & 36 of the judgment in Monika Waghmare versus State of Madhya Pradesh & Others (supra) to suggest that in Dr.Raghubir Saran versus State of Bihar AIR 1964 SC 1, the Apex Court deprecated the practice of casting aspersions on a witness or any other person not before him affects the character of such person or witness. The Court expressed its concern that such remarks may affect the reputation or career of such person. In this backdrop, Shri Kabeer Paul submits that without affording opportunity of hearing, the Commissioner should not have passed the impugned order directing registration of the FIR.
15. Reliance is placed by Shri Kabeer Paul on Paragraph Nos.12 & 13 of the Division Bench Judgment of this High Court in Jitendra Singh versus Rambabu & Others (2012) 3 MPLJ 450 to contend that Smt.Shakuntala Pandey had no locus to file a petition inasmuch as the Division Bench has held that "if a busy body or a stranger is permitted to file an appeal under Rule 3 then it would amount to bestowing powers upon the appellate authorities mentioned in Rule 3 of Rules of 1995, which are akin to powers exercised by the High Court and the Apex Court under Article 226 and Article 32 of the Constitution of India while dealing with a Public Interest Litigation. Such an intention can neither be read from the provisions of Rules of 1995 nor it can be imputed into it. Shri Kabeer Paul submits that revision was not maintainable before the Commissioner. Smt.Shakantula Pandey had no locus as she was not an aggrieved party.
Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 1516. Smt.Sanjana Sahni learned counsel for petitioner Ramshankar Mishra in Writ Petition No.14523/2019 submits that the petitioner Ramshankar Mishra was working as an Assistant Director in the office of District Education Office, Sidhi. He was given charge of the District Education Officer, Sidhi vide order dted 30.3.2011 and he had taken over as Incharge District Education Officer on 1.4.2011 whereas all the material was processed prior to that and without taking this aspect into consideration that there was no complicity of the petitioner Ramshankar Mishra and he too has been robed in, in a mechanical manner.
17. Shri Gaurav Maheshwari, learned counsel for Petitioner Virendra Singh Parihar in Writ Petition No.14753/2018 places reliance on Paragraph No.36 of the Division Bench Judgment of this High Court in Mansukh Lal Saraf versus Arun Kumar Tiwari & Others 2016 (2) M.P.L.J 283 to contend that it is well established position by now and for that matter, it was so in vogue in 1995, that when the Rules provide for procedure to be followed for appointment on any public post(s), it must be strictly followed. Any appointment made dehors the mandate of the prescribed rules, must be treated as non est; having been made without authority of law and thus, amenable to quashment by issuance of a writ of quo warranto.
18. Shri Gaurav Maheshwari, learned counsel for Petitioner Virendra Singh Parihar in Writ Petition No.14753/2018 places reliance on Paragraph No.47 of the Division Bench Judgement of this High Court in Mansukh Lal Saraf versus Arun Kumar Tiwari & Others (supra) wherein it is held that "we declare that all appointments made in similar manner (without following the selection process prescribed by the relevant recruitment rules), in breach of statutory rules, be treated as non est in the eye of law from its inception and Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 16 would stand annulled forthwith. However, we may leave the passing of a formal general Government Order for revocation of all such appointments or on case to case basis, to be issued by the Appropriate Authority of the State Government.
19. Shri Gaurav Maheshwari, learned counsel for Petitioner Virendra Singh Parihar in Writ Petition No.14753/2018 places reliance on Paragraph No.52 of the Division Bench Judgement of this High Court in Mansukh Lal Saraf versus Arun Kumar Tiwari & Others (supra) wherein it is held as under:-
"52. We, accordingly, allow this writ petition and make the rule absolute on the following terms :-
(i) The impugned appointment order dated 21.05.1998 issued by the respondent No.2 in favour of respondent No.1, is quashed and set aside.
(ii) Further direction is issued to the State of Madhya Pradesh, compliance whereof must be ensured by the Chief Secretary, to initiate appropriate legal action against the respondent No.1 and all concerned who were instrumental in the appointment of respondent No.1 knowing fully well that it was contrary to the selection procedure prescribed by the recruitment rules and would also result in defeating or nullifying the judgment of this Court dated 11.09.1997 in Writ Petition No.2673/1995 against the respondent No.1 quashing his regularization on the post of Sub-Engineer in Nagar Panchayat, Mauganj, District Rewa.
(iii) The respondent/State of Madhya Pradesh and all its Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 17 functionaries are directed to make all future regular appointments on the public posts in the respective departments strictly in conformity with the selection procedure specified in the concerned recruitment rules.
(iv) The Chief Secretary of the State of Madhya Pradesh shall call upon the Secretary of the respective departments of the State, to enquire into whether any employee in his Department has been or was appointed on regular basis without following the selection process prescribed in the relevant rules framed therefore after coming into force of such rules; and to proceed against all such persons as also against the person(s) responsible for making such appointment, in accordance with law; and submit report in that behalf to the Chief Secretary of the State of Madhya Pradesh within four months from today. The Chief Secretary of the State of Madhya Pradesh must then initiate necessary proposal for issuance of a general Government order or on case to case basis, to formally revoke all such illegal appointments made in similar manner without following the selection procedure prescribed by the relevant recruitment rules. The services rendered by such persons consequential to revocation of appointment be treated as only contractual appointment during the relevant period and that no other benefit shall be given or will accrue to them as in the case of regular appointee appointed as per the prescribed selection process for recruitment.
(v) The Chief Secretary to submit compliance report, within four weeks from the expiry of initial four months granted to the Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 18 Secretary of the concerned Department.
(vi) The petition, though disposed of in terms of this judgment, be notified in the third week of January, 2016, under caption "Direction" for consideration of the compliance report."
20. Shri Manas Mani Verma, learned Government Advocate for the State places reliance on the Division Bench Judgment of this High Court in Harish Chandra Yadav versus State of Madhya Pradesh 2012 (2) M.P.L.J 27 wherein it is held by the Division Bench that the right of appeal under Rule 3 of the Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995 is not restricted to a party to the proceedings. An appeal under Rule 3 of the Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995 can even be preferred by any person aggrieved. In the present case, the complainant had a locus in the matter and that locus cannot be said to be not available to the petitioner.
21. I have heard learned counsel for the parties and gone through the material available on record.
22. There are certain issues, which have been dealt with in different writ petitions in different forms but the crux of the matter is as under:-
23. In Writ Petition No.14753/2018, the petitioner has sought a relief to issue a writ of quo warranto for quashing the illegal appointment procured by the private respondent Nos.3 to 6. The other writ petitions bearing Writ Petition No.12280/2019 and Writ Petition No.12283/2019, the respondent Nos.3&4 respectively in Writ Petition No.14753/2018 are before this Court seeking a relief that the order passed by the Commissioner Annexure P/6 dated 27.5.2019 be set aside and the Court may grant other relief as may be permissible under law. Similarly, in Writ Petition No.13035/2019, Writ Petition No.13633/2019, Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 19 Writ Petition No.13808/2019 and Writ Petition No.14523/2019, quashing of the FIR is sought for the reasons mentioned above.
24. The first issue, which requires to be dealt with and as raised by Shri Kabeer Paul is as to whether revision is maintainable in terms of the provisions as contained in Rule 5 of the Madhya Pradesh (Appeal and Revision) Rules, 1995. An ancillary issue has been raised by Shri Pushpendra Dubey, Advocate, which slipped from the above discussion that there was an application for condonation of delay and Rule 6 prescribes limitation of sixty days to file revision but revision was filed after the prescribed period of limitation, therefore, without passing an order on the aspect of limitation, no order could have been passed by the Commissioner.
25. As far as maintainability of revision is concerned, it is argued by Shri Kabeer Paul that in view of the provisions as contained in Rule 3(d), since the order of Janpad Panchayat is amenable to appal before the Collector, therefore, revision was not maintainable before the Commissioner.
26. A plain and simple reading of the order passed by the Commissioner dated 27.5.2019 makes it clear that the Collector himself was a party to the illegal appointment though the Commissioner has slyly given clean chit to the Collector for the reasons best known to him inasmuch it is mentioned in the said order of the Commissioner that the Collector had forwarded an application to the concerned authority of the Janpad Panchayat to grant appointment to certain private respondents and, therefore, once the Collector was party to the menace, which was sown by the Collector, Sidhi and which was perpetuated by the other Officials of the Government or the Janpad Panchayat then appeal to Collector against the acts of the Collector will be like an appeal against the order of the caesar to caesar's wife. Hence, Smt.Shakuntala Pandey rightly did not Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 20 prefer appeal before the Collector though it could have been maintainable in terms of the Division Bench Judgment of this High Court in Harish Chandra Yadav versus State of Madhya Pradesh (supra).
27. Thus, the appeal would have been a futile exercise because the Collector himself had become a party to the lis by forwarding an application to the concerned authority asking them to examine and issue appointment order and, therefore, the only option available to the aggrieved party, was that of revision and not of appeal. Hence, the judgment of the Apex Courrt in Hasham Abbas Sayyad versus Usman Abbas Sayyad & Others (supra) relied on by Shri Kabeer Paul saying that appeal was provided and revision was not maintainable, will have no application to the facts and circumstances of the present case.
28. The principles of estoppel, waiver and acquiescence or even res judicata are not applicable to the facts and circumstances of the present case and by no stretch of imagination after recording a finding that the Collector was party to the selection process or had become party to the illegal selection process, it cannot be said that the Commissioner was acting without jurisdiction and the Court of Commissioner would be corram non judice and, therefore, that ground too is not made out to support the contention put forth by Shri Kabeer Paul and adopted by other petitioners.
29. Another issue is that Rule 5 of the Madhya Pradesh Panchayats (Appeal & Revision) Rules, 1995 provides that the State Government, the Commissioner, the Director of Panchayat, the Collector, may on its own motion or on an application by any party at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order, may examine the Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 21 record. The only embargo is that no application for revision shall be entertained against an order appealable under the Act.
30. It is evident that right to file appeal stood ceased by virtue of involvement of the appellate authority i.e. the Collector, Sidhi in forwarding the application for grant of illegal appointment and the second proviso below Rule 5(1)(a) of the Madhya Pradesh Panchayats (Appeal & Revision) Rules, 1995 cannot be said to be applicable to the facts and circumstances of the present case. As far as the issue of limitation is concerned, Rule 6(2) provides that the revisional authority may admit application for revision after expiry of sixty days if it is satisfied that there was sufficient cause for not presenting it within that period.
31. As is evident and not disputed from the discussion made hereinabove that Smt.Shakuntala Pandey was a stranger to the proceedings. She had moved an application before the Commissioner. The appointment orders were issued on 4.3.2011 & 15.4.2011. Revision was filed in September, 2011. Thus, once a stranger to the proceedings came to know of this fact that illegality has been committed and from the date of knowledge preferred a revision before the Commissioner then the Commissioner satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceedings of the authorities subordinate to it/him cannot be said to be an exercise performed beyond the period of limitation, therefore, that ground of limitation too is not available in the facts and circumstances of the present case.
32. Now the issue with regard to opportunity of hearing before giving a direction to lodge an FIR is taken into consideration. Chapter XII of the Code of Criminal Procedure, 1973 deals with information to the police and their powers to investigate. Section 154 of the Code of Criminal Procedure, 1973 Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 22 deals with information in cognizable cases. Without expounding and expanding the scope of Section 154 of the Code of Criminal Procedure, 1973, it is evident that the police is duty bound to record an FIR or register an FIR in case commission of a cognizable offence is brought to its notice. There is no provision under the Code of Criminal Procedure, 1973 or any other Act that the accused be given an opportunity of hearing before lodging of an FIR.
33. The judgment relied on by Shri Kabeer Paul in Virendra Kumar Tripathi versus State of Madhya Pradesh Through Secretary, Department of Corporation, Vallabh Bhawan, Bhopal & Others (supra) will be of no assistance to the petitioner because in that case, it is held that since the Control Order of 2015 provides for a mechanism to investigate and without conducting such investigation, there could not have been a blanket direction against the Officers of the Fair Price Shop to register an FIR. The judgment of Virendra Kumar Tripathi versus State of Madhya Pradesh Through Secretary, Department of Corporation, Vallabh Bhawan, Bhopal & Others (supra) being distinguishable on its own facts, is not applicable to the facts and circumstances of the present case.
34. Since the order of the Commissioner is nothing but an information on the basis of the material gathered by him that a cognizable offence was committed by committing a fraud on the system and issuing appointment order dehors the provisions of the Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules 1997 and that of the Madhya Pradesh Panchayat Samvida Shala Shikshak (Appointment and Conditions of Contract) Rules, 2001 then the person committing such fraud on the system and defrauding the public exchequer by allowing ineligible persons to draw salary Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 23 from the public exchequer, is nothing but commission of a cognizable offence. The information of commission of a cognizable offence does not require prehearing to the persons aggrieved to inform them or to put them on caveat that they have committed a particular offence and they should come and show cause that why action should not be taken, which may be a matter in case of a departmental enquiry requiring adherence to the principle of natural justice, therefore, the plea raised by some of the petitioners that they were not given opportunity of hearing or they were not parties before the Commissioner, is not made out.
35. Now the issue, which arises for consideration, is that whether the Commissioner was justified in passing an order directing the authorities to set aside the orders of appointment allegedly procured by committing a fraud on the system and not following the provisions of the statutory rules made in this regard, the answer lies in Division Bench Judgement of this High Court in Mansukh Lal Saraf versus Arun Kumar Tiwari & Others (supra). The Apex Court in Rajesh Awasthi versus Nand Lal Jaiswal & Others (2013) 1 SCC 501 has categorically noted that a writ of quo warranto will lie when appointment is made contrary to the statutory provisions. In the present case, since appointment has been made contrary to the statutory provisions, writ petition is maintainable challenging the such illegal appointments.
3 6 . Reliance placed by Shri Pushpendra Dubey on the decision of a Coordinate Bench of this Court in Writ Petition No.6608/2020 (Ravishankar Chouksey versus State of Madhya Pradesh & Others) decided on 19.7.2021 (supra) is not applicable to the facts and circumstances of the present case inasmuch as the Dictionary meaning of "Public Office" as extracted by a Coordinate Bench of this Court in Writ Petition No.6608/2020 Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 24 (Ravishankar Chouksey versus State of Madhya Pradesh & Others) decided on 19.7.2021 (supra) from Black's Law Dictionary reveals that essential elements to establish public position as "Public Office" are position must be created by the Constitution, the Legislature or through authority conferred by Legislature, portion of sovereign power of Government must be delegated to position, duties and powers must be defined, directly or impliedly, by Legislature or through Legislative Authority, duties must be performed independently without control of superior power other than law, and position must have some permanency and continuity.
37. In this backdrop, it cannot be said that a holder of a Class-III or Class-IV and Group-C or Group-D post having been appointed as in the present case by the authority conferred by the Legislature, which has resulted in promulgation of the Madhya Pradesh Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules 1997 and the Madhya Pradesh Panchayat Samvida Shala Shikshak (Appointment and Conditions of Contract) Rules, 2001, as the case may be, cannot be said to be not holder of the "Public Office" and, therefore, reliance placed by Shri Pushpendra Dubey on the judgment of a Coordinate Bench of this High Court in Writ Petition No.6608/2020 (Ravishankar Chouksey versus State of Madhya Pradesh & Others) decided on 19.7.2021 (supra) is misplaced because merely a person is a Class-IV or Class-III employee, will not be excluded from the definition of the "Public Office".
38. Accordingly, Writ Petition No.14753/2018 deserves to and is hereby allowed. The order of appointment of the private respondents is hereby declared to be null and void.
Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 2539. Writ Petition No.11019/2019, Writ Petition No.12280/2019, Writ Petition No.12283/2019, Writ Petition No.13035/2019, Writ Petition No.13633/2019 & Writ Petition No.13808/2019 challenging the order passed by the Commissioner, Sidhi on 27.5.2019 directing to register an FIR are dismissed. However, the petitioners will be free to present their side of the story during investigation as may be carried out by the competent authority and present their defence.
40. As far as Writ Petition No.14523/2019 is concerned, Petitioner Ramshankar Mishra has been able to make out a prima facie case for indulgence. When the petitioner was not involved in the process of selection/appointment and he was given charge of the District Education Officer as Incharge on 30.3.2011, a post on which he had taken charge on 1.4.2011 and prior to that all the files had moved from the office of the District Education Officer and that were dealt with by his predecessor, namely, Shri Rai Singh then the involvement of the petitioner merely for holding a post after completion of the act at the scene of crime, will not make him culpably responsible for the said act of his predecessor.
41. Accordingly, Writ Petition No.14523/2019 filed by Petitioner Ramshankar Mishra seeking quashing of the FIR is allowed and the FIR qua Petitioner Ramshankar Mishra is quashed.
42. In above terms, Writ Petition No.14753/2018, Writ Petition No.11019/2019, Writ Petition No.12280/2019, Writ Petition No.12283/2019, Writ Petition No.13035/2019, Writ Petition No.13633/2019, Writ Petition No.13808/2019 & Writ Petition No.14523/2019 are disposed of.
Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33 26(VIVEK AGARWAL) JUDGE amit Signature Not Verified Signed by: AMIT JAIN Signing time: 11-03- 2024 18:42:33