Madhya Pradesh High Court
Ashwani Kumar Mishra vs The State Of Madhya Pradesh on 2 November, 2017
THE HIGH COURT OF MADHYA PRADESH
WP-14986-2017
(ASHWANI KUMAR MISHRA Vs THE STATE OF MADHYA PRADESH)
2
Jabalpur, Dated : 02-11-2017
Shri SM Guru, learned counsel for the petitioners in WP
Nos.19028/16 and 14986/17 and Shri VDS Chouhan, learned
counsel for the petitioner in WP No.19705/2016.
Shri Vaibhav Tiwari, learned Panel Lawyer for the
respondent No.1-State.
Shri Prashant K. Badaraga, learned counsel for the respondent No.2.
In these writ petitions, the petitioners have challenged the inaction on the part of the respondents, whereby they have refused to accept the forms of the petitioners for the post of Assistant Grade-III Stenographer, Steno-Typist and Data Entry Operator on the ground that they do not hold Computer Proficiency Certification Test (for short "CPCT") score card.
The issue involved in these petitions is that whether the State Government can prescribed the condition for appointment of Class-III employees as stated above stipulating that CPCT is mandatory for all the candidates applying under Group-IV of the advertisement despite the fact that the aforesaid condition has not been prescribed in the various rules framed by the State Government for appointment of such employees. In the Rules prescribed by the State Government in respect of various departments filed as Annexure-P/7, in the required educational and other qualifications it is nowhere provided that Computer Degree/diploma and certificate is compulsory.
The contention of the learned counsel for the petitioners is that the rules framed under the provisions of Article 309 of the Constitution of India are binding in nature and cannot be changed by way of an executive instruction, and the eligibility criteria as provided in the rules cannot be subsequently changed in the advertisement.
It is further contended by the learned counsel for the petitioners that by way of an interim order, this Court had directed the respondents to accept the petitioners' form for the aforesaid posts and the petitioners have also passed the written examination for the same, and thus the learned counsel for the petitioners have submitted that their petitions may be allowed. In support of their contention, they have relied upon the order dated 5.9.2017 passed by the Indore Bench of this Court in Writ Petition No.7880/2016 wherein this court has categorically held that the respondents shall not insist the possession of the CPCT score card as mandatory and shall allow the petitioners to participate in the process of selection.
On the other hand, learned counsel for the respondent-State has submitted that the Coordinate Bench of this Court in the case of Alok Singh Vs. State of MP & others in WP No.6627/2017 vide order dated 4.10.2017, relying upon the full bench judgement of this court in the case of Manoj Kumar Purohit vs. state of M.P. reported in 2016(1) MPLJ 449 has held that even if the requirement of CPCT has been prescribed in the advertisement only and not in the rules, still the Government is entitled to include the said condition in the advertisement and the aforesaid order dated 5.9.2017 passed earlier in WP No.7880/2016 by the Indore Bench of this Court has been dissented with.
Learned counsel for the respondent No.2 has also supported the action of the respondents.
Heard the learned counsels for the parties and perused the record.
After a careful examination of the aforesaid judgements, this court finds that in the case of Manoj Kumar Purohit (supra) decided by the Full Bench of this Court, it was an admitted fact that the petitioner was appointed in accordance with the recruitment rules and this Court had the occasion to consider only two aspects of the matter viz. Recruitment rules vis a vis appointment order and its other offshoots. Whereas, in the case at hand, the intermediate stage of issuance of advertisement and the eligibility condition prescribed therein which runs contrary to the prescribed rules are in issue, which in the considered opinion of this court has not been considered by the Full Bench in para 11(b) of the said judgment on which the learned judge in W.P.No.6627/2017 has emphasized and has held that the condition of CPCT score card can also be imposed subsequently and has expressed is disagreement with the decision rendered by this Court in W.P.7880/2016 wherein this Court has held the inclusion of CPCT score card cannot be imposed dehors the Rules.
In view of the matter, since there are two diametrically opposite views taken by two co-ordinate benches of this Court regarding the validity of the introduction of an additional condition in the advertisement inviting applications which is not provided in the recruitment Rules, it would be expedient to refer this matter to a larger Bench of this Court for its consideration on the following question:
"Whether in the facts and circumstances of the case, where the advertisement inviting the applications for appointment to the posts of class III employees contains a condition that a candidate must have possessed inter alia the CPCT Score card which runs contrary to the Recruitment Rules, can it be held to be a valid condition in the light of the full bench judgment of this Hon'ble Court in the case of Manoj Kumar Purohit Vs. State of M.P. reported in 2016(1) MPLJ 449 as has been held by the learned Single judge of this Court in the case of Alok Singh (supra) on 04.10.2017 expressing its disagreement with the judgment dated 05.09.2017 rendered by a coordinate bench of this court in W.P.No.7880/2016 ? "
Registry is directed to place this matter before Hon'ble the Chief Justice for appropriate orders.
(SUBODH ABHYANKAR) JUDGE Ansari