Madhya Pradesh High Court
Madhuri Raghuwanshi vs State Of M.P. on 8 May, 2017
W.P. No.4457/2010 1
(Madhuri Raghuwanshi Vs. State of M.P. & Ors.)
8.5.2017.
Shri S.K.Sharma, learned counsel for the petitioner.
Shri A.K.Shrivastava, learned Panel Lawyer for respondents
No.1 to 3 and 6/State.
Shri D.S.Raghuwanshi, learned counsel for respondent No.4.
Shri Alok Katare, learned counsel for respondent No.5. Petitioner has filed this petition being aggrieved by order dated 30th June, 2010 passed by the Additional Commissioner, Gwalior Division, Gwalior, who has maintained the order passed by the SDO, Ashoknagar, in Case No.70/2008-09 dated 4.2.2010 whereby the petitioner, who was a candidate for selection to the post of Panchayat Karmi at village Bamorital, was found to be not eligible for such appointment on the ground that she had filed her application for consideration on 16.4.2007, whereas in the advertisement, Annexure P/3 dated 30.3.2007, last date for submission of the application in the office of Gram Panchayat was 14.4.2007.
Learned counsel for the petitioner submits that 14.4.2007 was a public holiday as it is a day on which Government has declared holiday by virtue of Ambedkar Jayanti. Similarly, 15.4.2007 was a Sunday, and therefore, petitioner could file her application only on 16.4.2007 and that had not incurred any disqualification, and therefore, the petitioner's case has rightly been considered by the authorities and petitioner being more meritorious has been granted appointment. He has drawn attention of this Court to the order passed by this Court in W.P.No.5168/2007(S) (Narendra Singh Raghuwanshi Vs. State of M.P. & Ors and one Amit Pal), wherein on a writ petition filed by Narendra Singh Raghuwanshi/respondent No.5 the Court was pleased to observe that there were 16 applications before the W.P. No.4457/2010 2 authorities which were to be considered for appointment of Panchayat Karmi. A direction was issued to consider the merits of the candidates who applied in pursuance to the initial advertisement and pass fresh orders with regard to appointment of Panchayat Karmi, as a result petitioner's appointment order was issued, but that was challenged by respondent No.5 before the SDO and SDO had on the reason that application was filed by the petitioner on 16.4.2007 quashed the appointment of the petitioner. Against this order, appeal, which was filed before the Additional Commissioner, too has been dismissed.
Learned counsel for the petitioner has also placed reliance on the judgment of the Supreme Court in the case of Mohd. Ayub Vs. State of U.P. & Ors. decided on 20.11.2009 in SLP (Civil) No.4104/2009, wherein referring to Section 10 of the General Clauses Act, 1987, it has been held that if a particular day is holiday, then Section 10 of the General Clauses Act makes an enabling provision to enable a person to do what he should have done in a holiday, on the next working day. Law does not compel performance of an impossibility. In view of such decision, learned counsel for the petitioner submits that since 14 th and 15th April, 2007 were public holidays, he had taken all necessary steps on 16.4.2007 and accordingly had filed application before the appropriate authority. This fact is apparent from copy of the receipt of the application as has been filed by respondent No.5 alongwith list of documents dated 29.3.2001. It is apparent from the said receipt that Gram Panchayat had received 16 applications and there is a note below the name of the petitioner that her application was received on 16.4.2007, and therefore, it is submitted that petitioner was entitled and being more meritorious was rightly issued appointment order as Panchayat Karmi, but the SDO and Additional Commissioner erred in not taking into W.P. No.4457/2010 3 consideration this aspect and has passed arbitrary and illegal order.
Learned counsel for respondent No.5 submits that petitioner was not having qualification of domicile as is provided under the advertisement, Annexure P/3, and therefore, in the light of the law laid down by the Supreme Court in the case of Jenany J.R. Vs. S.Rajeevan and others as reported in (2010) 5 SCC 798 qualification attained subsequently cannot be counted for the purpose of appointment and it is submitted that since the domicile certificate was obtained by the petitioner on 16.4.2007, therefore, his application was not complete in all respects and obtaining a document subsequently and furnishing the same would have rendered disqualification for appointment as Panchayat Karmi.
Learned Panel Lawyer for the State has supported the case of respondent No.5 and submits that since petitioner was not having domicile certificate on the last date of filing of the application, her application could not have been taken into consideration, and therefore, no interference is required in the impugned orders passed by the SDO and Additional Commissioner.
After going through the record and hearing the arguments, this Court is of the opinion that in the light of the law laid down by the Supreme Court in the case of Mohd. Ayub (supra) since there was a public holiday on 14th and 15th April, 2007, application submitted to the authority on 16.4.17 was valid and since the Supreme Court has held that there is a general principle that a party prevented from doing an act for some reason beyond his control can do so on the first subsequent opportunity, it was open to the petitioner to have obtained domicile certificate upto 16.4.2007 since 14.4.2007 and 15.4.2007 were holidays, and therefore, issuance of domicile certificate and filing it before the W.P. No.4457/2010 4 selection committee could not be faulted with, hence, the application as was submitted by the petitioner on 16.4.2007 cannot be said to be time barred. As far as the law laid down in the case of Jenany J.R. (supra) as referred to by respondent No.5 is concerned, it deals with attainment of subsequent qualification. It is admitted position that last date for submission of the application was 14th April, 2007 and by implication and as per the provisions of Section 10 of the General Clauses Act, it shall be deemed to 16.4.2007 because 14.4.2007 and 15.4.2007 were public holidays, and therefore, petitioner was entitled to obtain a domicile certificate on 16.4.2007 and submit his application for recruitment.
In view of such, the order passed by the SDO and Additional Commissioner treating the application to be not maintainable on 16.4.2007 is not sustainable inasmuch as they have failed to take into consideration the provisions contained in Section 10 of the General Clauses Act which deals with computation of time and since as per the provisions contained in Section 10, petitioner had obtained domicile certificate on 16.4.2007 and submitted the application on the same day as is apparent from the endorsement filed by respondent No.5, the application was within time, and therefore, if petitioner was meritorious, then no fault can be attributed to appointment of the petitioner on the post of Panchayat Karmi. Thus, the petition stands allowed. Impugned orders of SDO and Additional Commissioner are quashed. Parties to bear their own cost.
(Vivek Agarwal) Judge ms/-