Madhya Pradesh High Court
Smt. Mamta Pateria And Ors. vs State Of M.P. And Ors. on 11 January, 2002
Equivalent citations: 2002(5)MPHT76
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. These four writ petitions pertain to validity of selection of Shiksha Karmi Grade-III, made by Janpad Panchayat, Rajnagar in the year 1998.
2. The case has chequered history. The Collector, Chhatarpur as per order P-4 dated 31-5-1999, quashed the entire selection procedure. The order was affirmed in revision by the Commissioner, Sagar Division, Sagar as per order P-5 passed on April 18, 2000. Second revision was entertained by the State Minister, Panchayat & Rural Development Department, which was allowed as per order P-1 passed on November 1/10th, 2000. The said order P-1 was set aside by this Court in W.P. No. 2570/2001. The order P-1 passed by the State Minister was stayed by this Court in W.P. 3093/2001 and ultimately it was set aside on 18-8-2000 and this Court remanded the matter to the State Minister to hear all the interested parties then to decide revision and also to examine the question whether the second revision was maintainable before him ? The State Minister has passed the order on 10-10-2001 Annexure 1-5. The revision has been allowed the orders passed by the Collector and the Commissioner have been set aside. By way of amendment made in the writ petition in W.P. No. 6926/2000 prayer has been made to quash the order passed by the State Minister dated 10-10-2001 (Annexure 1-5). The subsequent order passed by the State Minister Annexure 1-5 was also stayed in W.P. No. 6926/2000 on 8-11-2001.
3. The points for decisions in the instant writ petitions are:
(1) Whether second revision is maintainable under Section 91 of the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the "Adhiniyam") and under Rule 5 of the M.P. Panchayats (Appeal & Revision) Rules, 1995.
(2) Whether the State Minister has acted arbitrarily and in contravention of direction of this Court and the rules in law in not granting hearing to all the persons/parties in the revision ?
(3) Whether orders passed by the Collector and Commissioner holding selection to be illegal are proper and could not be interfered with by the State Minister in second revision ?
(4) The factual matrix giving rise to the writ petitions unfolds that the applications were invited for Shiksha Karmi Grade-III. 246 posts of School Education Department and 106 posts of EPRP were advertised. Initially, selection was directly challenged in this Court in W.P. No. 4374/1998, which was decided on 5-9-1998. Appeal was directed to be filed before the appellate forum. 18 appeals were filed before the Collector. Collector as per order P-4 allowed the appeals on the following grounds :--
(1) Constitution of selection committee was improper as one of the members of the selection committee himself was a candidate and near relatives of other candidates were made members of the selection committee.
(2) The representative of MLA was included in the selection committee, (3) 15% marks were reserved for interview out of that, 11 were put at discretion of Chairman. Thus, all the members of selection committee did not participate in the selection process and out of remaining 4 marks, one was given to Chief Executive Officer, one was given to Block Education Officer and one each was given to two experts. It was not permissible. Thus, the selection cannot be said to be fair.
(4) 3 daughters of Block Education Officer who was a member of selection committee were selected; Ku. Seema Tiwari, Smt, Madhuri Tiwari and Ms. Rajni Tiwari. Relations of various members of the selection committee were selected and they were present at the time of interview and when the marks were awarded.
(5) Provision of reservation was not followed for Ex-military persons. 9% posts should have been reserved vacant for Ex-military person.
(6) 6% reservation was provided for handicapped persons, only 11 were selected out of 47 whereas 21 should have been selected. Rule 5 was, thus, violated as provision of reservation for handicapped persons was not followed.
(7) Posts reserved for Scheduled Tribes were filled by general category candidates.
(8) The Secretary of education committee being himself a candidate was not competent to participate, but, kept himself present throughout.
(9) On 24-7-1998, 301 candidates were interviewed. The marking pattern shows that mind was not at all applied to merits of the candidates.
5. The order P-4 passed by the Collector was agreed to by the Commissioner in the revision. Commissioner also passed a detailed order P-5 on 18-4-2000.
6. Pappuraja, Chairman of the Education Committee, Raghvendra Singh, who is the son of one of the members of selection committee Shri Ganesh Singh and Ramnaresh filed the second revision before the State impleading Smt. Mamta Pateria and 26 others persons as respondents.
7. In W.P. No. 6048/2001 (Arun Kumar Khare and Anr. v. State of M.P. and Ors.), the order passed by the State Minister on 10-10-2001/24-10-2001 is challenged, prayer is made to quash the order passed by the State Minister. Similar prayer is made in W.P. No. 6926/2000 (Smt. Mamta Pateria and Ors. v. State of M.P.).
8. However, in W.P. No. 5834/2001 (Surendra Singh Parmar v. State of M.P. and Ors.) filed on 9-11-2001, prayer is to quash the orders passed by the Collector and Commissioner and also the order of removal.
9. In W.P. No. 5877/2001 (Rajesh Kumar Khare and Ors. v. State of M.P. and Ors.), filed on 8-11-2001 prayer made is to quash the orders passed by the Collector and the Commissioner.
10. It is contended in W.P. No. 5877/2001 and 5834/2001 that the appointments were validly made and were illegally set aside by the Collector and the Commissioner. The order passed by the State Minister setting aside the orders passed by the Collector and the Commissioner is thus proper.
11. Learned Counsel Shri V.K. Shukla submits that second revision does not lie under Rule 5 of M.P. Panchayats (Appeal & Revision) Rules, 1995, the order passed by the State Minister lacks jurisdictional competence. He submits that the order passed by the State Minister is absolutely illegal. The State Minister has passed the previous order P-1 on 1-11-2000, when various writ petitions were pending before this Court; W.P. No. 3193/2000, W.P. No. 3192/2000, W.P. No. 3201/2000, W.P. No. 3144/2000, W.P. No. 3919/2000 and W.P. No, 3145/2000. Even if it had jurisdiction to entertain the second revision, the State Minister should not have interfered with the matter at all, but, in para 6.7 of order P-1 it was mentioned that the intention was not to interfere with the decision of this Court in writ petitions, but, interest of various institutions was the prime consideration. After the order dated 1-11-2000 was set aside by this Court in W.P. No. 3093/2001 on 18-8-2001 on the ground that the State Minister allowed the revision without giving opportunity of hearing to the petitioners, the matter was remitted back to him for deciding revision in accordance with law, but, except Arun Kumar Khare and Smt. Sangita Khare no body was heard, who also contend that they filed objection on 27-8-2001 raising preliminary objection. Thereafter, Arun Kumar Khare and Smt. Sangita Khare were not informed of any date, they were not informed of the next date 5-9-2001. No hearing took place on 5-9-2001 and the State Minister passed the order without effecting the service on the various other respondents. There were as many as 26 respondents in the revision and none of them was served or issued the notices.
12. Learned Counsel Shri Shukla further submits that the M.P. Panchayat Shiksha Karmi Recruitment & Condition of Service Rules, 1997, Schedule II provides constitution of selection committee for Shiksha Karmi Grade-III, under Rule 2 (c) and Rule 5. Constitution of selection committee was not as provided in Schedule II. There was no SC/ST/OBC members in the selection committee. Reservation provision of Ex-military and handicapped person was not followed. Secretary of education committee was himself candidate he got himself selected and various manipulations were found by the Collector. He has relied on decision of this Court in the matter of similar illegalities where the orders passed by the Collector was upheld. In W.P. No. 5469/1998 (Nityanand Sharma v. State of M.P.) decided on 24-2-1999 along with bunch of various other writ petitions and decision of this Court in L.P.A. No. 263/2001 (Smt. Asha Pateria v. State of M.P. and Ors.). He further submits that appeals were not barred by time before the Collector and Collector has considered the question in para 6 of the order about delay in appeal of Smt. Mamta Pateria. The certified copy was, not supplied to her, hence, the Collector has condoned the delay by reasoned order. Learned Counsel further submits that a writ petition PIL was filed challenging selection which was got dismissed by the respondents on the ground that fresh selection procedure is being adopted as the selection was set aside by the Collector and Commissioner. Thus, the Court was misled by the respondents in believing a wrong fact to obtain dismissal of the Writ Petition No. 382/98. The Collector before passing the order setting aside selection got the enquiry conducted. Devilal Ahir was himself the member and got himself selected as Shiksha Karmi. Various other relatives were also selected and the Block Education Officer, a member, got selected three of his daughters. The total control of the selection committee was given to the Chairman of the selection committee. He was given 11 marks out of total 15 and selection committee totally abdicated its function to its sole member which has destroyed the entire fabric of fair selection process and the very purpose of selection by multi member committee, was frustrated. There were so much discrepancies in the marks as noted by the Collector which makes that the entire interview proceeding was a farce. Large number of candidates were not properly interviewed.
13. Ms. Anjali Banerjee, Advocate has supported the submission raised by Shri V.K. Shukla, Advocate in W.P. No. 6926/2000, She further contends that the scope of revision that too second revision was not to reappreciate the facts. The State Minister has, thus, exceeded the jurisdiction and has committed gross illegality.
14. Shri Ajay Mishra, learned Dy. Advocate General has contended that second revision is maintainable. The member of the selection committee did not participate at the time of his own selection and other members did not participate at the time of selection of their relations. He submits that after decision of this Court when the State Minister took up hearing, Arun Kumar Khare and Smt. Sangita Khare presented themselves and notice was issued to respondent Nos. 2, 3, 4 to 10 only mentioned in W.P, No, 3093/2001. Fax message was sent to the Collector to serve these persons about the date of hearing, but, the learned Counsel after looking in to the record concedes that there is nothing on record to suggest that these persons were served. It is clear from record that there were in all 26 respondents in the revision before the State. Whereas as per Counsel notice was issued only to respondent Nos. 2, 3, 4 to 10 of the Writ Petition No. 3093/2001 and not to the others. Learned Counsel further submits that the reason mentioned by the State Minister are proper and the interference was rightly made in the second revision.
15. Learned Senior Counsel Shri Rajendra Tiwari appearing for intervenors; Dharmendra Kumar and 16 others, Shri Pravin Verma, appearing for Ghasiram and 125 other intervenors., who were the persons selected, contend that the second revision is maintainable under Rule 5 of the appeal and revision Rules, Sections 94 and 91 of the Adhiniyam clearly provide plenary power to the State Minister to interfere in any order passed by any subordinate officer. Composition of selection committee was proper. MLA could nominate a member as per the M.P. Panchayat Member Nomination Rules, 1997. It is further contended that simply participation by relative member cannot vitiate the entire selection. Having participated in the selection process the petitioners are stopped to turn round and to challenge selection on any ground. Entire selection is not rendered invalid at the most the selection is severable and the member concerned did not participate at the time when the relative was interviewed, and there is nothing wrong in the process of reserving 11 marks to be awarded by the Chairman on behalf of the education committee and it is not necessary that the marks should have been awarded by each and every member. They have resolved that the Chairman would give the mark on their behalf. There were 11 such members of said education society, thus 11 marks were given to the Chairman and fact that individual marks were not given by each member cannot vitiate the selection process. It cannot be said that all persons did not participate as the Chairman had awarded the marks after openly consulting each and every member and as per the desire, he had put the marks out of total 11 reserved for him and it is permissible to divide the marks amongst the members as per their capability. If is contended that the some of the members of selection committee were illiterate, hence, could not have awarded the marks. Hence, the marks were reserved to be awarded by the Chairman only. The appeal filed before the Collector by Smt Mamta Pateria was time barred. Sufficient cause was not made out. Requisite charge to obtain certified copy was not deposited. Hence, the Collector erred in condoning the delay. Learned Counsel further submits that it is not the fault of candidates that they were selected by a irregular procedure. Hence, they cannot be faulted. Minister at least heard Arun Kumar Khare and Smt. Sangita Khare. Thus, there was substantial representation. It was not necessary to have heard each and every respondents in revision. The hearing was provided in the representative capacity.
16. The foremost question for consideration is whether second revision lies under Rule 5 of the M.P. Panchayats (Appeal & Revision) Rules, 1995. Rule 5 of M.P. Panchayats (Appeal & Revision) Rules, 1995 is quoted below:--
"5. Revision.-- (1) (a) 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 proceeding of, the authority 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 order in reference thereto as it/he may think fit:
Provided that it/lie shall not vary or reverse any order unless notice has been served on the parties 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.
(b) An application for revision by any party shall only be entertained if it is on the point of law and not on facts.
(2) Notwithstanding anything contained in Sub-rule (1),--
(i) Where proceedings in respect of any case have been commenced by the State Government under Sub-rule (1) no action shall be taken by other officer mentioned in the said Sub-rule in respect thereof, and
(ii) Where proceedings in respect of any such case have been commenced by the Officer mentioned in Sub-rule (1), the State Government may either refrain from taking any action under this rule in respect of such case until the final disposal of such proceeding by such officer or may withdraw such proceeding and pass such order as it may deem fit."
17. Rule 9 deals with power of appellate or revisional authority, which runs as under:--
"9. Power of appellate or revisional authority.-- The appellate or revisional authority after giving an opportunity to parties to be heard and after such further enquiry, if any, as it may deem necessary subject to the provisions of the Act and the rules made thereunder, may confirm, vary or set aside the order or decision appealed against."
18. Section 91 of the M.P. Panchayat Raj Adhiniyam, 1993 provides for appeal and revision, which is reproduced hereunder :--
"91. Appeal and revision.--- An appeal or revision against the orders or proceedings of a Panchayat and other authorities under this Act, shall lie to such authority and in such manner as may be prescribed."
19. Section 94 of the Adhiniyam deals with General Power of Control, which is reproduced as under :--
"94. General Power of Control.-- In all matters connected with this Act or the rules made thereunder all officers empowered to act by or under this Act shall be subject to the same control by the same authority under whose administrative control they normally perform the functions of their office."
20. Section 91 contemplates that an appeal or revision shall lie to such authority and in such manner as may be prescribed. The manner is prescribed under the M.P. Panchayats (Appeal & Revision) Rules, 1995 framed in exercise of power conferred under Sub-section (1) of Section 95 read with Section 91 of the M.P. Panchayat Raj Adhiniyam, 1993. Rule 3 provides appeal and appellate authorities, with which we are not concerned with in the instant matter. Rule 5, quoted above, provides concurrent power to the State Government, the Commissioner, the Director of Panchayat, the Collector, any of aforesaid 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 proceeding of, the authority 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 order in reference thereto as it/he may think fit. Power is given to reverse the order after hearing the parties interested. No application for revision shall be entertained against an order appealable under the Act.
21. A bare reading of Clause (a) of Sub-rule (1) of Rule 5 of the M.P. Panchayats (Appeal & Revision) Rules, 1995 makes it clear that only one revision lies either to the State Government/Commissioner/Directorate of Panchayat/Collector. The power given is concurrent. It does not enable filing of second revision against revisional order passed by the Commissioner or Collector or by the Director of Panchayat. Second revision does not lie.
22. Respondents' main plank of submission is based on Sub-rule (2) of Rule 5. Clause (i) of Sub-rule (2) of Rule 5 provides where proceedings in respect of any case have been commenced by the State Government under Sub-rule (1) no action shall be taken by other officer mentioned in the said Sub-rule in respect thereof. Clause (ii) of Sub-rule (2) of Rule 5 also lends support, to interpretation that scheme provides only one revision and when once the superior authority is in seisin of the matter, subordinate authority or other officer cannot take any action. Clause (ii) of Sub-rule (2) of Rule 5 provides where proceedings in respect of any such case have been commenced by the Officer mentioned in Sub-rule (1), the State Government may either refrain from taking any action under this rule in respect of such matter until the final disposal of such proceeding by such officer or may withdraw such proceeding and pass such order as it may deem fit. Clause (ii) of Sub-rule (2) of Rule 5 has to be controlled by Sub-rule (1). Sub-rule (2) cannot be said to be giving a right of second revision. It is a procedural provision, What procedure has to be adopted. In case subordinate authority is taking an action. Clause (ii) of Sub-rule (ii) of Rule 5 provides that the State may refrain from taking any action or may withdraw such proceedings.
23. In W.P. No. 1195/2001 (Smt. Geeta Bai v. The State of M.P. and Ors.), decided on 16-3-2001 in proceedings under Section 40 of M.P. Panchayat Raj Adhiniyam, 1993, an order was passed by the Sub-Divisional Officer restraining the Sarpanch to operate the bank account, which was assailed before the Collector in revision. The Collector stayed the proceedings.
Against that second revision was preferred before the Commissioner. This Court considered Rule 5 of Appeal and Revision Rules, 1995 in its entirety and held that--
"on a perusal of the aforesaid provision, it is plain as noon day that no second revision is maintainable. Thus, the Commissioner could not have entertained the revision."
24. Another Single Bench of this Court in Ram Lakhan Rawat v. State of M.P., 2000(2) MPLJ 176, considered Section 91 and held in para 10 that--
"on a bare reading of the provision of Section 91 of Adhiniyam, it is apparent that only one revision will lie, rules if any, framed under the Adhiniyam cannot be in excess of powers conferred under the Adhiniyam."
25. The view taken in Smt. Gita Bai (supra) and Ram Lakhan (supra) appears to be sound. In case more than one revision right is inferred then the lowest authority to entertain the revision is Collector, thereafter the Commissioner. Director of Panchayat and then the State Government at the apex. Then against an order passed by the Collector in revision, second revision may lie to Commissioner, third to the Director of Panchayat and fourth to the State Government, which is apparently not the scheme contemplated by Section 91 of the Adhiniyam or Rule 5 of the M.P. Panchayats (Appeal & Revision) Rules, 1995.
26. The Counsel for the respondents have relied on Full Bench decision of this Court in Ravi Shanker Dubey v. Board of Revenue, AIR 1973 MP 52. The question for consideration before the Full Bench was whether a second appeal lies under Section 44 (2) of the Madhya Pradesh Land Revenue Code, 1959 from an order passed in appeal under Section 41 of the M.P. Ceiling on Agricultural Holdings Act, 1960. The second question for consideration was whether power of revision under Section 50 of the MPLR Code can be invoked and exercised against an order passed under the Ceiling Act. This Court took the view that the revision against the order passed by the appellate authority in Ceiling Act lies under Section 50 of the MPLR Code to the Board of Revenue. Since the order under the Ceiling Act is passed by the Revenue Officer and order passed by the Revenue Officer is subject to revision. Even an order passed in revision under Section 42 of the Ceiling Act will be revisable under Section 50 of the MPLR Code, power of revision under Section 50 extends to any order passed by any Revenue Officer. The decision is based on the definition of order as given in Section 56 for construing Section 50. This Court held that the order of the Commissioner passed in revision under Section 42 of the Ceiling Act will be revisable by the Board of Revenue under Section 50 of the MPLR Code. The question involved in Ravi Shankar (supra) was totally different then the one involved in the present matter. Here the interpretation is that of Rule 5 and Section 91. In Ravi Shankar (supra) it was only revision filed under Section 50 of the MPLR Code, 1959, whereas the other revision before the Commissioner was filed under Section 42 of the Ceiling Act, Both the parties have relied upon the Full Bench decision of this Court in Ramchandra Jagannath v., Dattatraya Shanker Rao, 1986 MPLJ 406. The Full Bench of this Court held that the revisional jurisdiction is not available as of right. This Court held that after the amendment was made in Section 115 of Code of Civil Procedure, no revision could be entertained by this Court, even against an appellate order. In order to ascertain whether right of revision is conferred on a litigant it would be necessary to examine the provision of law under which that right is being claimed. If it provides that revision shall lie against an particular order then such a provision would be read as conferring the substantive right. However, where the provision merely confers a power on a superior authority to revise the order of subordinate authority it would not be a case of conferral of substantive right. In the instant case latter is true, only one revision is provided by Section 91 as apparent from Section 91 and by providing concurrent power of revision under Rule 5. Any other interpretation, would lead to not only second revision, but, several revisions against the revisional order itself which is not the scheme of the Adhiniyam/Rules. The reliance of learned Counsel for the respondents on the decision does not provide any assistance to the argument advanced and rather negates it. Clause (b) of Sub-rule (1) of Rule 5 provides that an application for revision shall only be entertained if it is on point of law and not on facts. Once, it has been settled in the revision, it cannot be reagitated by filing second, nor as the case may be in third or fourth revisions.
27. Learned Counsel for the intervenors Shri Rajendra Tiwari has placed reliance on Section 94 of the M.P. Panchayat Raj Adhiniyam, 1993. The Appeal & Revision Rules are framed under Section 91 read with Section 95. Section 94 has no application in the matter of Appeal and Revision, but, it is simply a provision of providing General Power of Control to the next higher authorities. Section 94 cannot create a power of revision which is separately provided. Reliance on Section 94 is of no avail to the intervenors/respondents.
28. I do not find any reason to defer with the two Single Bench opinion expressed by this Court in Smt. Gita Bai (supra) and Ram Lakhan (supra).
29. In view of decision on issue No. 1 though it is not necessary to go into the question whether the State Minister provided opportunity of hearing to interested parties. The first proviso to Sub-rule (1) of Rule 5 of M.P. Panchayats (Appeal & Revision) Rules, 1995 clearly provides that no order can be varied or reversed unless notice has been served on the parties interested and the opportunity given to them of being heard. In the instant case the order passed by the State Minister on 1-12-2000 P-1 was set aside by this Court on the ground that interested persons were not heard. There were 18 appeals filed before the Collector. They were allowed. These parties were respondents in revision. There were 26 other respondents than Smt. Mamta Pateria in the revision before the State Minister.
30. Only two persons namely; Arun Kumar Khare and Smt. Sangita Khare filed their Vakalatnamas. After the order was passed by this Court in the Writ Petition No. 3092/2001, Arun Kumar Khare and Smt. Sangita Khare filed their Vakalatnamas through Shri Pankaj Khare, Advocate. The Vakalatnama was filed on 27-8-2001. No other person was present on 27-8-2001. All the 26 respondents were not parties in W.P. No. 3093/2001. The State Minister ordered on 27-8-2001 that notices be issued to all concerned parties. Fax message dated 29-8-2001 issued by the Additional Secretary, Panchayat and Rural Development Department, State of Madhya Pradesh to Collector, District Chhatarpur dated 29-8-2001 mentions "in the case next date fixed is 5-9-2001. The related record of respondent Nos. 2, 3, 4 to 10, of the petition along with written statement be directed to be kept present on the date of hearing; 5-9-2001. Learned Counsel for the State submits that it is the FAX message requiring the Collector to serve the respondent Nos. 2, 3, 4 to 10 about the date of hearing 5-9-2001. But, there is no such direction in the FAX message dated 29-8-2001 to serve the respondent Nos. 2, 3, 4 to 10. There is no service report available in the file produced in this Court, as per order dated 6-12-2001. The State was required to produce the service report if the respondent Nos. 2, 3, 4 to 10 were served, but, the State did not produce any such record and Counsel states that in the available record service on respondent Nos. 2, 3, 4 to 10 is not available. As a matter of fact, no service was issued nor effected. There were in all 27 respondents. Arun Kumar Khare and Smt. Sangita Khare only presented themselves as they were the petitioners before this Court on 27-8-2001 service was not issued to respondent Nos. 11 to 27 and to respondent No. 1 and other respondents mentioned in the memo of revision only Collector was informed about the date and for producing the record. There is no direction in the FAX message to the Collector to serve, even the respondents mentioned in the letter, respondent Nos. 2, 3, 4 to 10, no service report of any service effected by the Collector has been produced, in spite of direction by this Court, thus, it is held that the State Minister heard the matter without taking any care to verify whether the service has been effected on the interested parties which is necessary under the first proviso to Sub-rule (1) of Rule 5 of the Appeal and Revision Rules. In the order-sheet dated 5-9-2001, it is mentioned that the petitioners were heard. Petitioners were Pappuraja, Raghvendra Singh and Ramnarayan in the revision before the State Minister order mentions that it was not pointed out by the petitioners before the High Court that an order was passed on 19-1-2001. Time was sought by the Chief Executive Officer to file written submissions, which was allowed and the case was fixed for 6-9-2001. The order-sheet dated 6-9-2001 is totally vague, it mentions that Counsel for the applicants and respondents were present and heard. It is not mentioned who was the Counsel present for whom. The names of the Counsel present and heard is not mentioned. In the revision, there were 27 respondents and the respondents had conflict interse Executive Officer of Janpad Panchayat, respondent No. 3 was Block Education Officer, respondent No. 4 Ganesh Singh was Member, Education Committee, respondent No. 5 Devi Dayal was the Member of Education Committee, respondent No. 6 Shanker Pratap was the Member of Education Committee, respondent No. 7 was the Clerk, Education Committee and respondent No. 8 was the State. Thereafter from Serial Nos. 9 to 27 were other persons arrayed as respondents who had filed the appeal before the Collector. There is force in the submission that hearing opportunity was simply an eye-wash. Petitioner Smt. Mamta Pateria and respondent Nos. 11 to 27 were not at all noticed. No notice was issued to anyone except the Collector that too was issued to produce the record and file written statement.
31. The petitioners, Arun Kumar Khare and Smt. Sangita Khare in W.P. No. 6048/2001 have urged that they were also not heard. The Counsel for them had filed Vakalatnama and preliminary objection on 27-8-2001, but, next date was not fixed in his presence. On 5-9-2001 no hearing took place and outrightly final order was passed. Notice was not necessary for Arun Kumar Khare and Smt. Sangita Khare, as they had filed Vakalatnama. However, even if it is found that they were heard matter does not improve. No notice was issued to Smt. Mamta Pateria and respondent Nos. 11 to 27 and to other interested persons, who were the respondents. Respondent Nos. 9 and 10 only volunteered their presence on 27-8-2001. In the absence of service report on other respondents, it is held that the order is illegal and has been passed in violation of the Rule 5 and the order passed by the State Minister is liable to be set aside on this ground alone.
32. An affidavit of Raghvendra Singh has been filed who is the son of Ganesh Singh, Member of Education Committee and was petitioner. He has mentioned in his affidavit that Mr. Pankaj Khare, Advocate appeared on 6-9-2001 for Arun Khare and Smt. Sangita Khare and Shri M.L. Thakur, Advocate had appeared on behalf of other non-selected candidates. This affidavit does not appear to be correct. It is not the case set up in the affidavit that Shri Pankaj Khare was representing Smt. Mamta Pateria, respondent No. 1 in the revision. It is the case set up that he represented Arun Kumar Khare and Smt. Sangita Khare, for them he had filed his Vakalatnama on 27-8-2001, The presence of M.L. Thakur is not recorded by the State Minister in the order-sheets dated 27-8-2001, 5-9-2001 or 6-9-2001. None of the order-sheets is signed by Shri M.L. Thakur. Prior to remand he represented only respondent Nos. 12 to 18 and 20. There is no Vakalatnama filed after remand of the matter by Shri M.L. Thakur that he was ever authorized to appear. His presence is not recorded. He was earlier representing respondent Nos. 12 to 18 and 20. He was not representing Smt. Mamta Pateria, and other respondent Nos. 3 to 7. No notice was issued to respondents. Correctness of affidavit of Raghvendra Singh is disputed as petitioner submits they were not at all heard. By the affidavit of Raghvendra Singh, matter is not improved. It may be mentioned that after filing this affidavit Counsel did not point out that he pressed the contents of affidavit, the affidavit was not relied upon at all No argument was advanced by Counsel filing it based on affidavit. Prior to remand in the order-sheet dated 30-11-2000 meticulously name of Counsel Shri M.L. Thakur was mentioned for respondent Nos. 12 to 18 and 20, no such mention of the names of Counsel after remand of matter in 2001 indicates as notices were not issued as such order-sheet has been kept vague. Perusal of the record shows that after remand only two persons were represented by Shri Pankaj Khare, Advocate and remaining were not served nor represented. No notice was issued to them. All of them were not also parties in the writ petitions before this Court.
33. Matter would have ordinarily rest in view of the finding recorded on two submissions discussed above. In the two writ petitions; W.P. No. 5877/2001 and W.P. No. 5834/2001 which have been heard analogously. The validity of the order passed by the Collector and the Commissioner is assailed and on merits, arguments were advanced as to the legality of the order passed by the State Minister. Hence, the Court is required to enter in the various facets of the arguments as to the validity of the selection procedure as a whole and propriety of the orders passed by the Collector/Commissioner/State Minister.
34. The validity of the selection procedure has been assailed on various grounds:--
(1) Out of 15, 11 marks were allocated to the Chairman and out of 4 marks, one each to two experts; one to Chief Executive Officer, one to Block Education Officer; none to other 7 members;
(2) Second ground of challenge is that the relatives and candidate were the members of the selection committee, which has vitiated the entire selection process;
(3) Constitution of the selection committee was not proper;
(4) Overall selection procedure was a farce;
(5) Provision of reservation was not followed.
35. We take up the first point for consideration. M.P. Shiksha Karrai Recruitment and Condition of Service Rules, 1997 provides the method of selection and recruitment of Shiksha Karmis. Prior to amendment, at the relevant time Sub-rule (9) of Rule 5 runs as under:--
"5. Methods of Selection and Recruitment.--
(9) (i) The Committee will assess the candidates called for interview and award marks in the following manner:--
(a) 60% marks for marks obtained in the qualifying examination specified in Schedule II.
(b) 25% marks for the teaching experience in the schools of concerning Janpad Panchayat or Zila Panchayat. Similar benefits will be given for teaching experience of hundred percent State Government aided and recognized rural school. The decision of the Committee on the validity and valuation of the certificate of teaching experience of rural schools will be final.
(c) 15% marks for oral test which may include the test for:--(i) Communication skills in local dialect.
(ii) Knowledge of local environment.
(iii) General knowledge.
(iv) Training and Teaching Aptitude.
(v) Any other test which the Selection Committee may deem fit.
(d) Other things remaining the same, preference will be given to candidates who possess certificate in B.Ed., B.T.I, or D.Ed.
(e) All other things remaining the same, in the final selection, those who have teaching experience of schools of Janpad Panchayat or Zila Panchayat will be given preference.
(ii) Select list of each category shall be prepared on the basis of the above assessment in order of merit and shall include 5 names or 20% names, whichever is more in waiting list which shall be valid for nine months."
36. 15% marks for oral test are provided which may include the test for communication skill in local dialect and knowledge of local environment, general knowledge and training and teaching aptitude and any other test which the Selection Committee may deem fit. It is not necessary to the selection committee to have sub-divided the 15% marks under the different sub-heading as mentioned in Sub-clause (c) of Clause (i) of Sub-rule (9) of Rule 5 of the Rules. In Madanlal and Ors. v. State of J & K, (1995) 3 SCC 486, Their Lordships held that It is not necessary to divide the marks separately for intelligence, general knowledge etc. These are the factors which are to be kept in mind as guidelines, therefore, the submission of the petitioners that the members of the Interview Committee must separately assess and give marks on different listed topics faculty-wise as per the said rule, was not accepted by the Supreme Court.
37. In Dr. J.P. Kulshrestha and Ors. v. Chancellor, Allahabad University and Ors., AIR 1980 SC 2141, the Supreme Court considered the matter of selection of readers in English department of the University. The committee chose to interview the candidates who were otherwise eligible for consideration. Respondent Nos. 5 to 10 were appointed as Readers. Writ petition was filed. The legality of the selection process and appointments was impugned. The Supreme Court held that while there is no absolute ban, it is a rule of prudence that Courts should hesitate to dislodge decisions of academic bodies. If the Chancellor or any other authority lesser in level decides an academic matter or an educational question, the Court keeps its hands off, but where a provision of law has to be read and understood, it is not fair to keep the Court out.
38. The emphasis is that the fair procedure should be adopted though the Court cannot sit over the satisfaction of a committee, but, the procedure should be such which rules out any room for bias, arbitrariness, inaction and the purpose behind the oral test by a committee to be constituted of various persons. Section 47 (1) (c) of Panchayat Raj Adhiniyam, 1993 provides for constitution of education committee of Janpad Panchayat. As per Sub-section (4-A) of Section 47 every member of the Legislative Assembly who is a member of Janpad Panchayat, shall be ex-officio member of each Committee of that Panchayat. There were total 12 members of the selection committee. Every committee as per Sub-section (4) of Section 47 has to be constituted of at least five members. The Committee may co-opt two persons having experience or special knowledge. The members of the education committee shall include at least one woman and a person belonging to SC/ST. Indradev Singh was the president of the Education Committee, besides him the Chief Executive Officer, Block Education Officer Karelal Prajapati, Devilal Ahir-war, Ganga Singh, Smt. Hira Bai, Smt. Mamta Trivedi, Shri Dina Kushwaha, and as experts Shri P.M. Verma, Principal Govt. High School Basar, and Ku. Bundela, Incharge Head Master, Govt. Primary School were the members.
The resolution dated 21-7-1998 indicates that except Govt. Officer, remaining members shall give the marks by consensus. Every member shall not give the marks separately and marks shall be mentioned in the sheet by the Chairman. 8 members of the Committee including the Chairman shall give marks out of maximum 11. One mark was allocated to the Chief Executive Officer, one mark was to be at the discretion of Block Education Officer and one each at the discretion of two experts. Thus, total 15 marks were divided between the members. The submission of the petitioner's Counsel Shri V.K. Shukla is that selection had become a farce by reserving 11 marks at the discretion of the Chairman. Chairman has the power to divide the marks between members as per the memo dated 25-4-1998 as provided in para 2 of the memo. Perusal of the memorandum dated 25-4-1998 indicates that the President is given the power to divide the marks between the member. Normal rule is that marks should be equally divided between the members of the selection committee, which was not followed in the instant case. Chairman gave out of 11 marks on behalf of himself and 7 members, whereas other 4 members were given only one mark each. Chairman virtually usurped the entire functioning. In the resolution it is clearly mentioned that the marks shall be given by the Chairman only. It is also mentioned the other members have to be consulted. The original record was perused by this Court and it is found that out of 8 members of the education committee only Chairman has given the marks, out of 11, record does not show that the other seven members at all gave any marks. It is not the case of the respondents that marks as a matter of fact were given by other 7 members of the education committee. Marking was done out of one mark each reserved for other four persons, i.e., the Chief Executive Officer, Block Education Officer and two experts, but, major bulk of marks were reserved at the discretion of single person, i.e., the Chairman of the Education Committee Shri Indradev Singh. It was the total abdication of the function of the 7 members of the selection committee to one person. Fair procedure required that each & every member of the selection committee to assess the candidates in his own way and to give marks at his discretion and to keep secret the marks so awarded from other till interview procedure is over. It is the minimum requirement of fair play in action to prevent subjectivity.
39. The Supreme Court in Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454, held that the fair procedure required that a person who is interested should not only withdraw from participation in the interview and must not take part in any discussion and further significantly it was laid down that even the mark or credit given to that candidate should not be disclosed to him. The procedure which has to be adopted must be fair and in the instant case no record has been maintained of the so-called discussion if any made between the members of the Education Committee and Chairman, before award of marks. Such an open discussion would have effect of destroying secrecy and giving wide room for subjectivity in selection. The record does not show that any deliberation was made. The very purpose of the constitution of selection committee stands frustrated if the marks are to be given by only the Chairman of the Committee then it is total abdication of function by the other members. It cannot be said to be a fair selection process and leaves room for allegations of bias. Performance has to be judged independently by each and every member which was not done in the instant case and in what manner it was judged there is no record. Otherwise also, in the absence of record showing any consultation having been done by Chairman with the members, it cannot be believed even if the contention is accepted that any consultation was made openly before marks were awarded then no secrecy was maintained and persons of the subjective choice of the members could always be selected if such a method is allowed to be adopted which by itself render selection bad. It is not the case that Chairman individually consulted the members. No record of such individual consultation and view expressed by the members in what manner consultation was done, how many marks a member proposed to give is available.
40. Thus, the finding that fair procedure was not adopted by selection committee, recorded by the Collector as affirmed by the Commissioner was absolutely proper and has been wrongly interfered with by the State Minister.
41. In D.K Gupta v. High Court of Punjab &Haryana, 1997(1) SLR 310, emphasis was laid that there should be record to show evaluation of the performance of the candidates who appeared in the interview, the merit list prepared suffers from arbitrariness and it can be said that fair consideration has been denied. In the instant case, record is not available of the consultation, in what manner it was done and consultation if held itself would have been an arbitrary act for awarding the marks. Maximum marks could not be reserved at the discretion of one person, which may affect the outcome in vital manner. Thus, the procedure adopted lacks objectivity and gives room to a subjective choice. Case of individual innocence is not enough. The general procedure has to be taken into consideration. In the instant case no record is maintained of consultation.
42. In Krishan Yadav v. State of Haryana, (1994) 4 SCC 165, if the entire selection is arbitrary it is that which is faulted and not the individual candidates. An axe has to be thrown upon favouritism if the selections are vitiated from fraud, nepotism, favouritism and arbitrariness, should be set aside. The Court has to ensure the fairness of the procedure which in the instant case stands vitiated from the beginning and whole selection was simply a camouflage. This finds support from various other facts which are writ large to be discussed later on. The Collector/Commissioner found that there was room for likelihood of bias in the method adopted. The bias is constituted as considered by the Supreme Court in Dr. G. Sarana v. University of Lucknow and Ors., AIR 1976 SC 2428, the Apex Court held that it is difficult to prove the mind of a person. What has to be seen is whether there is reasonable ground for believing that he was likely to have been biased. In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration. In a group deliberation and decision like that of Selection Board, the members do not function as computers. Each member of the group or board is bound to influence the others, more so if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner. Paras 11 & 14 are reproduced below:--
"11. Again as held by this Court in A.K Kraipak's case (AIR 1970 SC 150) (supra) reiterated in S. Parthasarthi v. State of Andhra Pradesh, (1974) 1 Service LR 427 = (AIR 1973 SC 2701) and followed by the High Court of Jammu & Kashmir in Farooq Ahmad Bandey v. Principal Regional Engineering College, 1975 J and K LR 427, the real question is not whether a member of an administrative Board while exercising quasi-judicial powers or discharging quasi-judicial functions was biased, for it is difficult to prove the mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased. In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration. In a group deliberation and decision like that of a Selection Board, the members do not function as computers. Each member of the group or board is bound to influence the others, more so if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner."
"14. From the above discussion, it clearly follows that what has to be seen in a case where there is an allegation of bias in respect of a member of an administrative Board or body is whether there is a reasonable ground for believing that he was likely to have been biased. In other words whether there is substantial possibility of bias animating the mind of the member against the aggrieved party."
43. The method which is said to have been adopted does not rule out the possibility of one member affecting the other and which in turn makes the selection procedure farce.
44. Learned Counsel for the intervenors has submitted that the candidates are not responsible for wrong conduct of the interview, hence, they should not be made to suffer. But, as already discussed above, innocence of one cannot come to the rescue of all. There has to be fair selection process for all and overall selection process has to be fair. The argument raised by learned Counsel for the intervenors that the members were illiterate, hence, they had authorized the Chairman to given the marks, is not understandable. It is a selection of teachers. Plea of illiteracy has not been taken anywhere and it does not appear that the members of Janpad Panchayat were illiterate. Plea stands to be rejected and is of no useful purpose to the cause espoused, but, is such which may ultimately have the effect of having adverse impact on the selection itself, but, there is no foundation for such an argument. Hence, the argument raised is irrelevant. In Dr. Triloki Nath Singh v. Dr. Bhagwan Din Misra and Ors., AIR 1990 SC 2063, Linguistics expert was not included in the Selection Committee, hence, selection was set aside, but, this question has not to be gone into in the instant case as there is no such foundation made to advance argument of literacy of the members selecting the teachers.
45. In Dr. J.P. Kulshrestha (supra), the emphasis was made on the fair procedure. Though it is open to divise its procedure. However, fair play in action should be maintained, arbitrariness has to be avoided, basic underlying principle of observance is equality.
46. The Collector also found that large number of candidates were interviewed everyday and mark pattern does not inspire confidence that candidates were properly interviewed though it is not for the Court to sit over the marking pattern as the Appellate Court go into that question. However, the fact remains that when the large number of candidates were interviewed on the same day, it has to be shown proper time was given to each candidate, about 300 candidates were interviewed on a single day. On 24-7-1998, 301 candidates' interview were conducted. Thus, the finding recorded by the Collector in para 8 that marking pattern shows that the mind was not properly applied to all the candidates for various reasons mentioned in para 8 of the order. When large number of candidates are interviewed in a day, in Satpal v. State of Haryana, 1995 Supp (1) SCC 206, the Supreme Court held that where interview is conducted of 400-600 candidates in a single day, it can be said that the procedure to be a mere farce or mockery and proper time was not devoted to each candidate and effectively interviewing such a large number of candidates on a single day. would be humanly impossible. The Supreme Court further held that when entire selection process is tends to be arbitrary, selection has to be quashed. In the instant case, the Collector has seen the marking pattern of candidate continuously up to 170 and the Collector has found that it does not sound to reason that all of them had answered wrongly, as such the Collector has come to the conclusion that when such large number of candidates were interviewed, pattern shows procedure was simply a farce. The criticism of the order of the Collector that the Collector sat over the merit of the assessment made by the committee is not proper and the Collector as a matter of fact examined the proceedings with a view to come to a conclusion that whether the procedure reflects that proper interview of such a large number of persons were conducted, even if this aspect is ignored, there is inherent flaw in the procedure which makes the procedure invalid. Distribution of marks was not fair. Chairman virtually reserved 11 marks out of 15 to himself and one each was given to Chief Executive Officer, Block Education Officer and two experts. There was no equal distribution of marks. Power to divide the marks has been used to take away the entire function of the selection committee to centre round one person which has rendered the other members dis-functional and their opinion was rendered otiose and no proper record of such opinion was maintained. The Collector also found on facts that lists containing marks were not signed by all the members and the members were not called while final tabulation was done. Collector also found interpolation was done in the list containing marks of the interview. The findings were affirmed by the Commissioner in revisional jurisdiction, thus, even if second revision lies before the State, question of law only could be examined, not question of facts reopened. The findings of facts recorded by Collector in appeal and approved by Commissioner in revision were final and it was not open in the second revision to the State Minister to enter into the question of facts.
47. The next question is that of participation of various relatives. Three daughters of Block Education Officer; Ku. Seema Tiwari, Ku. Madhuri Tiwari and Ku. Rajni Tiwari were selected. He was a member of selection committee. Indrapal Singh, nephew of Ganesh Singh who was a member of selection committee was selected. Another relative of Gajendra Singh Bundela was also selected. Savitri Prajapati, niece of Pyarelal Prajapati was selected. Devilal Ahirwar, member of selection committee got himself selected. The Chairman's relative Smt. Upma Singh, Dharmendra Singh and Shailendra Singh and brother Chandrapal Singh were selected. Wife of Uttam Singh, clerk of the selection committee, namely Smt. Shashi Kumari and another relative Smt. Kiran Bundela was also selected. Smt. Basanti Kori, wife of another clerk was also selected. Section 100 of the M.P. Panchayat Raj Adhiniyam provides the penalty if an employment is obtained by any member or office bearer or servant of the Panchayat. The finding recorded by the Collector is that though resolution mentioned that when relatives were interviewed concerned relative did not participate, but, that has been doubted in view of the affidavit filed by Ganesh Prasad Pathak, member of the selection committee who was the representative of MLA, in addition affidavits filed by Hansraj, Rekha Verma indicated that the members, as a matter of fact had not gone out and participated. Whatever that may be, but, fact remains that large number of relatives were selected as mentioned above.
48. In AK Kraipak and Ors. v. Union of India, AIR 1970 SC 150, the selection was made by the Board, one of the members of which was a candidate. Selection was held to be violative of rules of natural justice and biased. Though the member had not taken part in deliberation of the Board at the time of his own selection, he had taken part while making selection of other candidates including his rival candidates. The Supreme Court considered the conflict between interest and duty of such member and held that reasonable likelihood of bias vitiates the selection list.
49. In Dr. (Mrs.) Kirti Deshmankar v. Union of India and Ors., 1991(7) SLR 491, the Supreme Court laid down, in the backdrop of the fact that mother-in-law of one of the selected candidates was present in the College Council, it was sufficient to invalidate the selection process if it could be shown that there was a reasonable likelihood of bias, the selection of respondent No. 5 was set aside.
50. Reliance has been placed by the intervenors' counsel on a decision of this Court in Ras Bihari Pande v. Municipal Corporation, Jabalpur and Ors., 1966 MPJLJ 426, where the Councillor who was father took part in the discussion regarding appointment of his son as Lecturer in the Corporation school. The resolution was unanimously passed, but, the said decision cannot fold field, as on today in view of the subsequent pronouncement made by the Supreme Court.
51. In Ashok Kumar Yadav (supra) Supreme Court emphasized that relative should withdraw from the selection process and marks awarded should not be known to him obviously with a view that other may get fair treatment. Hence, withdrawal and maintaining of secrecy is the requirement of fair selection.
52. In M. Ariffuddin Nizami and Ors. v. D.D. Chitale and Ors., 1973 (2) SLR 119, one of the member of the selection committee had some partnership with one candidate, the Division Bench of Andhra Pradesh High Court held that likelihood of the bias has to be avoided. Selection should not only be impartial, but, should also appear to be impartial to all right minded persons. There should be no reasonable likelihood of bias in favour of one or others.
53. In Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487, the oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. However, in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification.
54. Here the Block Education Officer was having three daughters to be selected. One member was himself a candidate and there were members whose near relatives were selected including that of the Chairman.
55. The intervenors contends that, it is a severable selection and the selection of the relatives may be set aside, but, for the various other certain incurable defects unfolded above which were found by the Collector and the Commissioner, entire selection has to go.
56. An argument is advanced by the petitioners' Counsel Shri V.K. Shukla that constitution of the selection committee was not proper as representatives of MLA participated. The submission is refuted by the respondents and intervenors. They contends that as per the rules, it is open to MLA to nominate a person to represent him.
57. Section 47 (1) (c) provides constitution of education committee. It is one of the standing committee as per Sub-section (4-A) of Section 47 every member of legislative assembly who is the member of Janpad Panchayat shall be ex officio member of each Committee of that Panchayat.
58. The M.P. Panchayat Members (Nomination of Representative) Rules, 1997, Rule 3 of the said rules provides that Every Member of the Legislative Assembly or Member of Parliament who is a Member of Janpad Panchayat or Zila Panchayat or Ex-Officio Member of its Standing Committee, as the case may be, may nominate a representative who possess the qualifications prescribed in Rule 4 to attend the meeting if he is unable to do so owing to absence, illness or any other cause. Under Rule 5, the representative shall be eligible to attend the meeting and take part in the deliberations therein, but shall not be eligible to cast his vote in the meeting. Thus, the nominee could have participated in the meeting of the education committee. The selection committee is constituted of Chairperson of Standing Committee of education, Chief Executive Officer, Dy. Director of Education or Assistant Commissioner Tribal Welfare, two experts in the subjects, all 5 members from the Standing Committee of education one whom atleast belong to SC/ST/OBC. In case there is no member in the Standing Committee, then same shall be nominated from the general body. Though, it would have been proper if the member himself would not have participated, however, petitioners cannot challenge the constitution of selection committee having participated in the selection and taking a chance of getting selected, in view of law laid down by the Supreme Court in Dr. G. Sarana v. University of Lucknow, AIR 1976 SC 2428 and Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., AIR 1986 SC 1043.
59. The Collector also rightly found that provision of reservation for Ex-military persons and for widow was not mentioned in the advertisement, which was necessary as per the memo dated 2-11-1985, 9% reservation is provided which was not advertised, hence, the advertisement itself is illegal. Another aspect on which the Collector interfered that handicapped quota was not filled completely, 47 incumbents appeared, 21 posts were reserved and 6% posts are to be given to them, out of 47 only 11 were selected whereas 21 should have been selected as per the reservation. It was found to be in violation of Rule 5. It was also found that the Scheduled Tribe quota was filled by the general category persons.
60. It is also the finding recorded by the Collector that interpolations were there in the marks which had vitiated the selection.
61. In the similar circumstances, this Court in Parwati Ahirwar and Anr. v. Collector and Competent Authority, Panna and Ors., 1999 (1) Vidhi Bhasvar 295, held that it is not necessary when selection is set aside as a whole to grant hearing to each and every person. In my opinion when general procedure adopted is not fair, it is not necessary to give hearing to each and every person.
62. The Division Bench of this Court in LPA No. 263/2001 (Smt. Asha Pateria v. State of M.P. and Ors.), decided on 18-10-2001, consisting of Hon. the Chief Justice and myself has also taken the view that it is not necessary, in case of such apparent illegality to grant hearing to all following the decision in Biswa Ranjan Sahoo and Ors. v. Sushanta Kumar Dinda and Ors., AIR 1996 SC 2552.
63. Another Single Bench of this Court in Nityanand Sharma v. State of M.P., W.P. No. 4569/1998, held that it is not necessary to hear everybody in the case of gross irregularities. In Biswa Ranjan Sahoo (supra) the Supreme Court held as under:--
"3. A perusal thereof would indicate the enormity of malpractices in the selection process. The question, therefore, is : whether the principle of natural justice is required to be followed by issuing notice to the selected persons and hearing them. It is true, as contended by Mr. Santosh Hegde, learned Senior Counsel appearing for the petitioners, that in the case of selection of an individual his selection is not found correct in accordance with law, necessarily, a notice is required to be issued and opportunity be given, In a case like mass malpractice as noted by the Tribunal, as extracted hereinbefore, the question emerges : whether the notice was required to be issued to the persons affected and whether they needed to be heard ? Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the burnt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment. The procedure adopted are in flagrant breach of the rules offending Articles 14 and 16 of the Constitution."
64. Learned Counsel for the respondents has relied on decision of this Court in Ani Bhatnagar and Ors. v. State of M.P. and Ors., 2000 (2) MPLJ 151. In the instant case the entire selection procedure has been challenged. In that case suo-motu action was taken by the Collector. Learned Counsel submits that opportunity of hearing should have been provided, but, as already discussed that this Court in LPA No. 263/2001 (Smt. Asha Pateria) (supra), and various other decisions mentioned above, have followed the decision of the Supreme Court in Biswa Ranjan Sahoo (supra) and consistently, it has been held that in case of gross irregularities, it is not necessary to hear each and every person.
65. Learned Counsel for the intervenors has relied on All India SC & ST Employees Association and Anr. v. A. Arthur Jeen and Ors., JT 2001 (5) SC 42, to contend that when a candidate's name is included in the list, selection is challenged, candidate should be made a party. In the instant case as already held that nature of illegalities, irregularities committed goes to the root of the matter. Thus, it was not necessary to have heard each and every person.
66. Learned Counsel Shri Pravin Verma has raised another submission that the writ petition W.P. No. 6926/2000 has not been filed by the persons mentioned in the writ petition. He has filed I.A No. 1863-W/2001 and I.A. No. 1193-W/2001. It is submitted that the writ petition has been filed by one Gorelal Tiwari and not by 10 petitioners. It is submitted that the signatures on Vakalatnama do not talley with the signatures of the petitioners and one of the petitioner No. 3 was at a different place, he was at Chhatarpur and not at Jabalpur on the day when the writ petition was filed. The petitioners in reply filed on 4-6-2001 have denied the allegations and they owned their signatures. The petitioner No. 3 has also contended that he had filed the form on 13-2-2000 not on 16-3-2001 as alleged by respondents. Affidavit of Ravi Shanker, petitioner No. 3 has also been filed as Annexure P-31, affidavits of Biharilal Sen, Lakhan Lal Khare have also been filed by the petitioner and allegations against Gorelal Tiwari have been denied. Smt. Mamta Pateria has also filed an affidavit that she had herself signed the Vakalatnama. Her affidavit is on record as P-36. In view of the fact that the petitioners have owned their signatures, it not for the Court to act an expert or enter into hazardous exercise to say that petitioners signatures are not there on Vakalatnama. Moreover, there are 10 petitioners and only one is alleged to be present at Chhatarpur, not the others, which fact is also seriously disputed by the petitioner No. 3. There is yet another writ petition challenging the same order passed by the State Minister, filed by Arun Kumar Khare and Smt. Sangita Khare, the objection is hypertechnical and in any case inconsequential. Thus, there is no force in the submission raised by Shri Pravin Verma, Advocate.
67. Next submission is that one of the appeal filed by Smt. Mamta Pateria was barred by limitation. The Collector has discussed the matter. In the case of Smt. Mamta Pateria, the delay was condoned on the ground that she had applied for certified copy, but, same was not supplied. Cogent reason was given by the Collector to condone the delay and the Commissioner has also accepted the findings. Hence, it was not open to the State Minister to enter into the question of condoning the delay that too in the second revision which was itself not maintainable. It was not a question of law, but, of the fact. Moreover, the delay was only in the appeal of Smt. Mamta Pateria. There were other 17 appeals. They were filed by various petitioner, they are not shown to be barred by limitation and moreover this Court in W.P. No. 4374/1998 had directed some of the petitioners to file an appeal within one month of 5-9-1998, then plea of limitation shall not be permitted to be raised. Since the other appeals are not shown to be barred by time, nothing survives in the contention which is liable to be rejected.
68. Resultantly, the order passed by the Collector which was affirmed by the Commissioner, are restored. The order passed by the State Minister contained in 1/6 in W.P. No. 6926/2000 = Annexure P-1 in W.P. No. 6048/2001 is quashed. The order passed by the Collector is directed to be implemented forthwith.
69. The W.P. No. 6926/2000 (Smt. Mamta Pateria and Ors. v. State of M.P. and Ors.) and W.P. No. 6048/2001 (Anil Kumar Khare v. State of M.P. and Ors.) are allowed. W.P. No. 5877/2001 (Rajesh Kumar Khare and Ors. v. State of M.P.) and W.P. No. 5834/2001 (Surendra Singh Parmar v. State of M.P. and Ors.) are dismissed. The respondent No. 1 State is directed to bear the costs of the petitioners in W.P. No. 6926/2000 and W.P. No. 6048/2001. Costs are quantified in each of the writ petition at Rs. 2500/-.