Madhya Pradesh High Court
Raja Bhaiya Tripathi And Ors. vs State Of Madhya Pradesh And Ors. on 27 March, 2001
Equivalent citations: 2001(4)MPHT425
ORDER S.K. Kulshrestha, J.
1. The petitioners in Writ Petition No. 5201/2000 have challenged the order dated 17-4-2000 (Annexure P-3), passed by the Collector, Distt. Satna, in Case No. 26-C/144/Appeal/97-98 and the connected appeals, by which the Collector has set aside the select list of Shiksha Karmis Grade III dated 15-9-1998 prepared by the Janpad Panchayat, Majhgawan. In the connected two petitions, the very order has been challenged only in so far as it directs that selection on the basis of applications already received be made in accordance with the amended provisions of the rules.
2. Janpad Panchayat, Majhgawan had issued advertisement on 8-7-1998 inviting applications for the post of Shiksha Karmis Grade III and on the basis of the applications received, candidates were called for interview and selection was made. On the said select list having been challenged in various appeals, the Collector had stayed further action in pursuance of the said select list and given notice to the respondents to the appeal and summoned the record. During the pendency of the appeal, the record had also been seized by the Office of the Lokayukt and in pursuance of the direction issued by this Court in W.P. No. 2249/1999, copies of the record were obtained by the Collector and'after examination of the matter, the said order was passed.
3. Learned counsel for the petitioners has pointed out that the decision of the Collector to set aside the select list prepared by the Education Committee of the Janpad Panchayat is mainly founded on the alleged violation of Rule 5 (7) & 5 (8) of the M.P. Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997 (hereinafter referred to as "Rules") while there was no material to suggest that the Education Committee had not adhered to the provisions contained in the rules.
4. Rule 5 provides for the Methods of Selection and Recruitment. Sub-rule (7) lays down that after scrutiny of the applications received, category-wise merit list of the candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes and General Category shall be prepared on the basis of the marks obtained in the qualifying examination prescribed for the post and on the basis of the number of vacancies in each category, three times the number of vacancies to be filled in each category shall be called for the interview and/or test according to the merit list. It also provides that such candidates who have worked minimum for one session in the school of Janpad Panchayat or Zila Panchayat will be called for interview or test. The Janpad Panchayat in preparing the category-wise merit list had called candidates for interview in excess of three times prescribed by the rules for which the explanation offered by the Janpad Panchayat was that since it was also necessary to call such candidates who had worked minimum for one session in the school of Janpad Panchayat or Zila Panchayat, the number was exceeded. The Collector observed that the Janpad Panchayat should have restricted the zone to three times the number of posts advertised by calling the candidates who had already worked atleast for one session in the school of Janpad Panchayat or Zila Panchayat and if by inclusion of such candidates, the number had exceeded the prescribed three times the number of posts advertised, the zone should have been restricted to three times only. Apparently the interpretation of the Collector is based on assumption that it is first necessary to include in the merit list the candidates who have worked minimum for one session in the schools of Janpad Panchayat or Zila Panchayat and if the number of such candidates is less than three times the number of posts to which the consideration is to be restricted, then alone other candidates are required to be called. Rule 5 (7) reads as under :--
"(7) After scrutiny of the applications received, category-wise merit list of the candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes and General Category shall be prepared on the basis of the marks obtained in the qualifying examination prescribed for the post. On the basis of the number of vacancies in each category, three times the number of vacancies to be filled in each category shall be called for the interview or and test according to the merit list. Such candidates who have worked minimum for one session in the school of Janpad Panchayat or Zila Panchayat will be called for interview or test."
5. From a reading of the rule, it is clearly perceptible that category-wise merit list is required to be prepared on the basis of the marks obtained in the qualifying examination prescribed for the post. Thus, in a given process of selection, the persoas who fall in the latter category of having worked minimum for one session in the schools of Janapad Panchayat or Zila Panchayat may or may not get included in the merit list on the basis of the marks obtained by them in the qualifying examination. It is only in such cases that it is necessary under the latter part of the rule to call such candidates. In the sequence in which the rule mandates performance of the exercise to short list the candidates for interview, it is clear that only if such candidates who have worked for atleast one session in the school of Janpad Panchayat or Zila Panchayat get left out on the basis of their lower merit adjudged from the marks obtained by them in the qualifying examination that it is necessary to call them for interview or test. The fact that the rule itself lays emphasis on calling such candidates for interview and test and not for their inclusion in the category-wise merit list of candidates to be prepared under the first part of the rule, itself clearly signifies the intention that they are to be called in addition to the candidates who become eligible on the basis of their merit. A contrary interpretation may tend to lead to absurdity of exclusion of meritorious candidates in a situation where three times the number of the posts advertised become available from the category of candidates who have worked in earlier sessions. Thus, candidates who have worked for atleast one session in the school of Janpad Panchayat or Zila Panchayat are to be called for interview irrespective of the availability or otherwise of the sufficient number of candidates to cover the requirement of three times the number of posts. The Collector, therefore, clearly erred in holding that if with the candidates falling in the latter category the number of three times is exceeded, then other candidates cannot be called. The provision is otherwise and it is first necessary to prepare a list and if candidates of the latter category get left out on account of their lower merit, they are to be called in addition.
6. Sub-rule (8) of Rule 5 provides for the constitution of the Selection Committee consisting of members specified in Schedule II. Chairperson of the Standing Committee of Education of Zila Panchayat, Chief Executive Officer of Zila Panchayat, Deputy Director, Education or Assistant Commissioner, Tribal Welfare, as the case may be, two experts in the subjects nominated by the Standing Committee for Education of whom one shall be a woman and all members from the Standing Committee of Education of whom atleast one belongs to SC or STor OBC constitute the Selection Committee. In case there is no member belonging to SC/ST/OBC in the Standing Committee, the rule requires that a person shall be nominated from the General Body to be a member in the Committee. The Collector has observed that there was no woman subject expert in the Committee and although the rule does not permit inclusion of the local MLA in the Committee, the record reflected that MLA Shri Ganesh Bari had participated in the proceedings of the Committee and had awarded marks to the candidates. There is nothing to suggest that the observation of the Collector based on examination of the record is not correct. Since the constitution of Committee under Rule 5 does not provide for MLA to be in the Committee or for his participation in the Selection process, it is clear that violation of the rules was patent. To what extent the result was affected by the influence of the local MLA was not possible to ascertain and on this ground alone the Select List was liable to be quashed. It is, therefore, not necessary to consider the other grounds taken into consideration by the Collector in setting aside the Select List.
7. At this stage, it is necessary to refer to the contention of Shri A.P. Singh in W.P. No. 5423/2000 that the order of the Collector was vitiated as notice to the selectees had not been given. Learned counsel submits that without giving an opportunity to the selected candidates, the Collector could not have proceeded to decide the appeal as their rights were directly involved and result was likely to prejudicially affect them. In dealing with a similar contention in the case of the order passed by the Collector, Panna in relation to a select list prepared by Janpad Panchayat, Panna, it has been held by this Court in W.P. No. 4761/1998 and the connected petitions that where the defects noticed by the Collector were referable to the wilful and deliberate acts of the persons involved in the process of selection about which the individual candidates could have had no knowledge to explain the irregularities and the malpractices, notice to the individual candidates against whom no stigma was cast, was not necessary. In the present case, the defect in the constitution of the Committee was patent and glaring. While Schedule II does not provide for any participation of the local MLA in the process of selection of Shiksha Karmis, in gross violation of the rules, local MLA was permitted to participate and to make assessment of the candidates. He had also awarded marks to the candidates which had definitely affected the result of selection. The fact that the MLA had participated in making selection of Shiksha Karmis has not been controverted and is even otherwise based on the observation of the Collector upon examination of the record. Since on this ground alone it was permissible for the Collector to quash the select list, the fact that he has also taken into consideration other material which rendered the list invalid is of no consequence. The impugned order of cancellation of the Select List is, therefore, fully justified.
8. The submission of the learned counsel for the petitioners in the connected petitions, however, is that since upto the stage of receipt of the applications by the la.st date prescribed in this behalf, the Collector did not notice any defect and in fact the Collector has himself directed the Janpad Panchayat to proceed afresh from the stage of receipt of the applications for the preparation of list of candidates to be called for interview and to take further steps, the Collector could not have directed that the selection should be made in accordance with the rules subsequently amended by notification dated 7-7-1999. In dealing with a similar contention in W.P. No. 4751/1999 (Kunj Bihari Garg v. State of M.P. and Ors.) decided on 11-4-2000, it was observed by this Court that where direction is to proceed from the stage after the receipt of the applications, it is necessary to process the cases in accordance with the rules prevalent at that time and the cases could not have been, therefore, processed in accordance with the rules subsequently amended. It was observed that to the process which had already commenced and had been completed before the amendments were made in the Recruitment Rules, the amended provisions could not be applied for considering the cases afresh in the continuing process of selection. Reference was made to the decision of the Supreme Court in P. Mahendran and Ors. v. State of Kamataka and Ors., (AIR 1990 SC 405) to the effect that it was a well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Thus, the rules as amended by notification dated 7-7-1999 would have no application in the case of the process which was initiated prior thereto. Under these circumstances, the direction of the Collector to the effect that the selection should be made in accordance with the provisions of the rules as amended cannot be sustained.
9. In the result, the petition W.P. No. 5201/2000 is dismissed and the connected petitions are allowed only to the extent that the direction contained in the impugned order for processing of the cases in accordance with the rules as amended by notification dated 7-7-1999 is set aside and the order of the Collector shall, therefore, stand modified to that extent.
10. Learned Govt. Advocate has pointed out that any direction made in the present petition may come in the way of the Government's taking a decision to make fresh recruitment for the posts in question. The apprehension of the learned Govt. Advocate appears unfounded as in the present case the question as to whether or not it is still permissible for the Government to direct the Janpad Panchayat to initiate a fresh process of recruitment by advertising the posts again does not fall for consideration.
11. These petitions are, accordingly, disposed of with no order as to costs.