Madhya Pradesh High Court
Swakshtagrahi Sangh Janpad Panchayat ... vs Union Of India Panchayati Raj ... on 25 November, 2021
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
THE HIGH COURT OF MADHYA PRADESH
W.P.No.2825/2021
(SWAKSHTAGRAHI SANGH AND ANOTHER Vs. UNION OF INDIA
PANCHAYATI RAJ SECRETARIAT)
W.P.No.1540/2021
(SWAKSHTAGRAHI SANGH JANPAD PANCHAYAT NIWAS AND ANOTHER
VS.UNION OF INDIA PANCHAYATI RAJ SECRETARIAT)
W.P.No.3469/2021
(SWACHCHHAGRAHI SANGH SEONI AND OTHERS VS.THE STATE OF M.P.&
OTHERS)
Jabalpur; Date:17/11/2021
Shri Sameer Beohar, counsel for the petitioner in
W.P.No.2825/2021.
Shri Amratash Nema, counsel for the petitioner in
W.P.No.No.1540/2021.
Shri R.S.Yadav, counsel for the petitioner in
W.P.No.3469/2021.
Shri Devendra Gangrade, Pane Lawyer for the
respondent-State.
Shri Anil Lala and Shri Sushil Kumar Mishra, counsel for intervenors.
Pleadings are complete.
Parties are ready to argue the matter finally, therefore, it is heard finally.
Considering the similitude of the controversy involved in these cases, the grounds and the reliefs sought for therein being similar as well, all these writ petitions were analogously heard and are being decided by this common order.
2(2) For the sake of convenience, the facts mentioned in W.P.No.2825/2021 are being taken up as lead case:-
(3) By means of the present Writ Petition filed under Article 226 of the Constitution of India, the petitioners are questioning the legality, validity and propriety of order dated 01/01/2021 (Annexure-P-5) and letter dated 31/12/2020 (Annexure-P-6). By Annexure-P-6 dated 31/12/2020 instructions were issued by the Director Panchayat to all Chief Executive Officers of Jila Panchayat in the State to implement the scheme known as "Rashtriya Gram Swaraj Abhiyan" (RGSA) and make selection for the post of Mobilizers. The Chief Executive Officer, Janpad Panchayat Mohgaon vide Annexure-P-5 dated 01/01/2021 (Annexure-P-5), cancelled the selection of Mobilizers and directed to conduct a fresh selection in pursuance to letter dated 31/12/2020.
(4) The petitioners are claiming to be an Association of Mobilizers, which is registered under the provisions of Madhya Pradesh Society Registrikaran Adhiniam, 1973, vide registration No.1/04/06/36475/2020.
(5) As has been pleaded in the petition that the members of association have already been selected in the selection process conducted by the office of Janpad 3 Panchayat, Mohgaon, District Mandla for the post of Mobilizers. Vide Annexure-P-2 the selected candidates have also been given posting by the Chief Executive Officer, Janpad Panchayat, Mohgaon, but that order could not be implemented and selected persons have not been allowed to perform the duties, because at the relevant point of time, there was an outbreak of pandemic COVID-19, and for the period of two years no one was allowed to work as a Mobilizer. Although, respondent-State issued an instruction for conducting the fresh selection process of Mobilizers, so as to implement the scheme of RGSA and the Chief Executive Officer cancelled the said selection process, in which members of the petitioners-association had been selected and select list was also issued in that regard vide Annexure-P-2.
(6) The challenge made by the petitioners was based upon the fact that when petitioners were already working as Mobilizers and in the policy there was a provision for extension of period of service of Mobilizers, it is wholly illegal on the part of the respondents-authorities to cancel the selection already done, and further not considering the fact that, there was an outbreak of pandemic COVID-19, which had impact for a period of two years and in-between number of selected members of the petitioners-
association crossed the upper age limit of selection to 4 the post of Mobilizers and as such, they will be sufferer of the conduct of the respondents and it would be a great hardship to them.
(7) Respondents-State have filed their reply taking stand therein that the petition is not maintainable for the reason that it has been filed by the association without disclosing list of their members, and in view of the law laid down by the High Court in the case of Prabhat Vs. Barkatulla University, reported in 2011 ILR M.P.1692, the petition is liable to be dismissed.
(8) The State has also taken a stand that the selection as has been claimed by the petitioners had already been conducted and select list (Annexure-P-2) was also published, but that is not the final select list; as the same has not been approved by the competent authority and no appointment order has been issued in pursuance to the said selection. It is further stated that merely selection does not confer any right on the participants.
(9) As per State, it is evident from the documents filed by the petitioners that though the select list was prepared, but was not approved by the competent authority and no order of appointment was issued, therefore, if selection is cancelled by the State Government, the said action cannot be assailed by the 5 petitioners, as no right accrues in their favour to challenge the same.
(10) Intervenors have also filed applications, which were allowed by order dated 12/08/2021, wherein they have claimed that in a fresh selection process they have been selected, but because of interim order granted by the Court on 15/02/2021, the whole selection process was stayed, whereas the challenge made by the petitioners is confined to a particular Janpad Panchayat. They have further stated that selected persons of said Janpad Panchayat, who have approached this Court had also participated in the fresh selection process, although remained unsuccessful, therefore, after their failure in the fresh selection, they have no right to challenge the same, that too without making selected persons as party. (11) Although, counsel for the petitioners was not aware of the fact whether the persons find place in select list (Annexure-P-2) have further participated in the selection process or not.
(12) The intervenors have also taken a ground that as per the petitioners' own admission in paragraph 6.2 of the petition, the period of their appointment was only up to March, 2021 and the said period is over, therefore, fresh selection cannot be assailed by the association at the instance of selected persons.
6(13) An application for vacating of stay order has also been filed by the State and the intervenors, saying that in a fresh selection process new candidates have been selected and challenge is confined only to a particular Janpad Panchayat and as such, selection process already conducted in all other Janpad Panchayats cannot be stayed as there was no challenge to that regard.
(14) I have considered the rival contentions of learned counsel for parties and also perused the record. (15) As regards the objection raised by the State and also by the intervenors with regard to maintainability of petition merely on the ground that the impugned selection cannot be assailed by the association without showing the list of their members or disclosing the facts that the selected persons who secured their position in the select list are the members of the petitioner's association and have authorized the association to raise dispute on their behalf, the Counsel for the petitioners in that regard has drawn attention of this Court towards the resolution dated 27/01/2021 passed in a meeting, authorizing association to challenge the order passed by the State in the High Court directing fresh selection process. But that resolution cannot be said to be a resolution authorizing by all members of the association, because as per Annexure-P-2, the name of 38 persons shown to 7 have been selected as Mobilizers in Janpad Panchayat, Mohgaon, whereas the resolution contained the name of only 13 persons present during the course of passing the resolution. Even otherwise, the petitioners' association failed to disclose the name of their members and they have also not filed any list of their members, which is the requirement for filing the petition before this Court, as has been laid down by the Division Bench in case of Prabhat (Supra). The petitioners have also not disclosed the fact whether this association is confined to the area of a particular Janpad Panchayat or a particular District or it was a State Level Association as their bye-laws are not on record indicating the working area of the association.
The Division Bench of this Court in case of Prabhat (supra) has observed as under:-
2. A writ petition for enforcement of the rights of its members, as distinguished from the rights of the Association as a body, can be filed by the Association acting through its office bearer or member, whether the Association is registered or unregistered, incorporated or not, only when the Association can satisfy the Court that if an adverse decision is given in that petition all the members of that Association or "Body of Individuals" will be bound by the decision. The reason is, that otherwise, immediately after adverse decision any other member of that Association may come before the Court in an independent writ petition, saying that he has not been heard and he had not authorized such Association or office-bearer or member to represent him in the litigation.
3. Therefore firstly the members of the Association must be clearly determinate and identifiable; and secondly either there should be Rules of such Association, or a legally binding special resolution of its general body for such representation in the litigation, so as to bind the members by the decision in such litigation.
(16) In view of aforesaid law laid down by the 8 Division Bench of this Court and perusal of resolution, on which the petitioners are relying upon, I have no scintilla of doubt to say that the said resolution and the averments made in the petition do not fulfill the requirement of law for filing the petition by association under Article 226 of the Constitution of India. Therefore, the petition filed on behalf of the petitioners-association is not maintainable. (17) Coupled with aforesaid, though the select list Annexure-P-2 was prepared showing name of certain persons selected as mobilizers, but that list has not been approved by any competent authority and no appointment order has been issued in favour of the selected persons, therefore, according to the stand taken by the respondents, no right accrues in favour of the petitioners to challenge the fresh selection, because under the circumstances then existing when pandemic of COVID-19 was in effect and no person was allowed to perform the work and thus the selection process could not be completed. The Supreme Court in the case of State of M.P.and others Vs. Raghuveer Singh Yadav and others, (1994) 6 SCC 151, has held that unless appointment order is issued mere selection does not give any right to the candidate to challenge the fresh selection. The Supreme Court has observed as under:-
It is not in dispute that Statutory Rules have been made introducing Degree in Science or Engineering or Diploma in Technology as qualifications for recruitment to the posts of Inspector of Weights and Measures. It is settled law that the State has got power to prescribe qualifications for recruitment. Here is a case that pursuant to amended Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final 9 recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules.
(18) Further in the case of State of Manipur and another Vs. Takhelmayum khelendro Meitei and Others, 2019(3) SCC 331 the Supreme Court in paragraphs 11 to 13 has held as under:-
11. In Shankarsan Dash v. Union of India, it was held that there is no indefeasible right for appointment merely because a candidate is found fit on the basis of a selection. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it was also held in the said judgment that the State does not have any license to act in an arbitrary manner and that the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. The High Court observed that there is no bona fide reason for the successor entities of the Electricity Department for not appointing the Respondents.
Further, the High Court concluded that it was not the stand of the appellant that the process of recruitment has been scrapped.
12. The policy decision of the Government dated 19/03/2001 cancelling all the selections that were made earlier and banning any further recruitment was part of the record which could not have been ignored by the High Court. There was sufficient justification for the Government of Manipur to ban recruitment. The Government was compelled to take such decision in view of the financial crisis. The said decision of the Government cannot be said to be arbitrary under any circumstances. The policy decision of the Government of Manipur dated 19/03/2001 was bona fide and the respondents cannot assert any right for appointment on the basis of the selections conducted in the year 1999.
13. Even assuming that the successor entities of the Electricity Department have an obligation to defend the actions and decisions of the Electricity Department, it is relevant to note that the decision dated 19/03/2001 of the appellant cancelling the selections conducted before that date had not been questioned by the Respondents. In any event, the Respondents do not have a legal right to seek appointment to the posts of Assistant Lineman as the selections stood cancelled by the policy decision dated 19/03/2021. We are unable to agree with the High Court's direction for appointment of the Respondents in the posts of Junior System Assistants which were advertised in 2016.
(19) Considering the aforesaid view of the Supreme Court and the fact existing in this case it is 10 clear that the members of petitioners-association as claimed by the petitioner no.1 though selected to the post of Mobilizers for a term ended in the March 2021, but were not being allowed to perform the duties, therefore, no occasion arose to extend the appointment further after March 2021 and State has every right to conduct a fresh selection, as no right accrued in favour of the petitioners, unless appointment orders are issued and selected candidate is appointed and permitted to work in pursuance to the selection.
(20) Thus, in my opinion, petition filed by the petitioners is liable to be dismissed not only on the ground that it is not maintainable on behalf of the petitioners-association, because that does not fullfill the requirement of law as has been laid down by the Division Bench in case of Prabhat (supra) but also on the ground that no right accrued in favour of the petitioners claimed to have been selected and select list (Annexure-P-2) issued in their favour. (21) Ex consequentia these petitions fail and are hereby dismissed.
(SANJAY DWIVEDI) Judge sushma Digitally signed by SUSHMA KUSHWAHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, SUSHMA ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=06cc7ec7869e71b23c61580e1aaad8548 1f7ea48cd875c18e5a68787947df0c5, KUSHWAHA pseudonym=3162691BECDE33282E19E0CEBA20 524E31482089, serialNumber=0844205F54108DDA40342AD423 EF1D3DE29D4F5E3FC94CC59B05D91905B104C7, cn=SUSHMA KUSHWAHA Date: 2021.12.02 11:27:48 +05'30'