Madhya Pradesh High Court
Dhyanendra Singh And Anr. vs State Of M.P. And Ors. on 24 August, 2006
Author: S.K. Gangele
Bench: S.K. Gangele
ORDER S.K. Gangele, J.
Heard.
1. The petitioners have filed this petition challenging the order of Additional Commissioner dated 31-7-2006, Annexure P-1 passed in appeal. By the aforesaid order, the Additional Commissioner has directed appointment of respondent No. 7 as Panchayat Karmi.
2. Respondent No. 6 Gram Panchayat Mebli issued a notification, a copy of which has been filed as Annexure P-4 on 6-3-2006 with regard to appointment of Panchayat Karmi under the scheme formulated by the Government named as Panchayat Karmi Yojna. It was mentioned in the notification that the candidate must has minimum qualification of High School pass under 10 + 2 system. The State Government formulated a scheme named as Panchayat Karmi Yojna with regard to appointment of Panchayat Karmi. In Para 4 of the aforesaid scheme process of selection has been prescribed and as per the aforesaid scheme Gram Panchayat has to invite applications for the purpose of appointment of Panchayat Karmi and General Body of the Gram Panchayat would consider the cases of the persons for the appointment. As per Clause 3, the minimum qualification is High School Certificate under 10 + 2 system. It has also been mentioned in the aforesaid clause that the Panchayat has power to add other required qualifications in addition to the minimum qualification.
3. Subsequently, the Government issued another circular dated 27th January, 2006, by the aforesaid circular the power with regard to fixing the additional qualification by the Panchayat for the post of Panchayat Karmi has been withdrawn and it was made clear that the minimum qualification for the purpose of appointment of Panchayat Karmi would be passing of High School Examination with 10 + 2 system.
4. In pursuance to notification, near about five persons submitted their application for the appointment as Panchayat Karmi including the petitioners and respondent No. 7. The petitioner No. 1 has a qualification Higher Secondary, B.A. Degree and the petitioner No. 2 has a qualification of Higher Secondary. Petitioner No. 2 is the wife of petitioner No. 1. As per the chart the petitioner No. 1 secured 57.3% marks in Higher Secondary and 63.6% marks in B.A. Examination. The petitioner No. 2 secured 71.7% Marks in Higher Secondary. With regard to respondent No. 7, it is mentioned that he secured 61.5% marks in Higher Secondary and 67.8% marks in High School.
5. The Panchayat vide resolution dated 24-3-2006 recommended the name of the petitioner No. 1 for appointment on the ground that he secured more marks in B.A. Examination, i.e.,63.6%.
6. There was some dispute and complaints about selection so near about 10, out of 15 Panchas of the Panchayat submitted a complaint to the Sub Divisional Officer mentioning the fact that the Sarpanch has passed the resolution without any meeting. It is further been mentioned in the complaint that the appointment of the petitioner No. 1 has been made arbitrary. It has further clear from the resolution that the resolution was forwarded to the Collector for recommendation and thereafter vide order dated 24-6-2006 the petitioner No. 1 has been appointed as Panchayat Karmi. It is mentioned in the order that the appointment order has been issued in pursuance to the order of Collector dated 1-4-2006. The Sub Divisional Officer found complaint true thereafter, respondent No. 7 filed a petition before this Court, which was registered as W.P. No. 2243/2006 (S), this Court vide order dated 2-5-2006 directed the respondent No. 7 to file an appeal in accordance with Madhya Pradesh Panchayats (Appeal & Revision) Rules, 1995. In view of the aforesaid order, the respondent No. 7 filed the appeal before the Additional Commissioner, the Additional Commissioner vide the impugned order assessing the merits of the candidates issued the order of appointment of Panchayat Karmi of respondent No. 7.
7. Learned Counsel for the petitioners has submitted that the order passed by the Additional Commissioner is without authority and jurisdiction because as per Rule 3 of M.P. Panchayats (Appeal & Revision) Rules, 1995 the Sub Divisional Officer has power to hear the appeal. He further submitted that once the Panchayat has fixed the criteria for selection and adopted it fairly, the Court has no power to interfere with it. In support of his contention, learned Counsel relied on the judgment Dalpat Abasaheb Solulnke v. Dr. B.S. Mahajan AIR 1997 SC 261, Durga Devi and Anr. v. State of H.P. and Ors. , K. Shekar v. V. Indiramma and Ors. and AIR 2001 SC 152, Praveen Singh v. State of Punjab and Ors.
8. Learned Counsel for respondent No. 6 also supported the arguments of learned Counsel for the petitioners. Apart from this, he has specifically submitted that the Additional Commissioner has no power to assess the merits of the candidates individually and issue order for appointment of respondent No. 7.
9. Learned Counsel for respondent No. 7 has submitted that the whole procedure of appointment adopted by the Gram Panchayat is arbitrary and illegal. Mark-sheet of respondent No. 7 for B.Sc., has not taken on record. Respondent No. 7 has higher qualification and secured higher marks in High School, Higher Secondary, B.Sc., B.Ed. and also Computer. Learned Counsel further submitted that as per advertisement the minimum qualification for the post of Panchayat Karmi is High School in 10 + 2 and the Panchayat cannot appoint the person on the basis of merit in higher qualification. In support of his contention he relied on the judgments of the Hon'ble Supreme Court , Secretary (Health) Department of Health & F.W. and Anr. v. Dr. Anita Puri and Ors. and , P.M. Latha and Anr. v. State of Kerala and Ors.
10. With regard to objection of the Counsel for the petitioners that the Additional Commissioner has no power to entertain the appeal, in my opinion, the aforesaid objection cannot be entertained. It is clear from the facts that the appointment order of the petitioner No. 1 has been issued by the Panchayat in pursuance to the order of the Collector. In such circumstances, certainly as per the provision of Madhya Pradesh Panchayats (Appeal & Revision) Rules, 1995, Proviso 'B' of Rule 3 of M.P. Panchayats (Appeal & Revision) Rules, 1995 would be applicable which is as under:
in the case of an order passed by the Collector under any provision of the Act or Rules or bye-laws made thereunder to the Commissioner.
11. Apart from this, this Court in the earlier writ petition has also ordered that the respondent No. 7 may file an appeal in accordance with Rules M.P. Panchayats (Appeal & Revision) Rules, 1995.
12. With regard to merits of the case, certainly as per the advertisement and the scheme of the process of selection of Panchayat Karmi the minimum qualification for the post of Panchayat Karmi is High School, 10 + 2. In the present case, petitioner No. 1 secured 46.2% marks in High School, 57.3% marks in Higher Secondary and 63.6% marks in B.A. Examination. Petitioner No. 2 wife of the petitioner No. 1 secured 46.8% marks in High School, 71.7% marks in Higher Secondary and respondent No. 7 secured 67.8% marks in High School and 61.5% marks in Higher Secondary and 62.4% marks in B.Sc. The Panchayat has selected the petitioner only on the ground of receiving higher marks in B.A. Examination.
The question is, that whether the Panchayat has acted fairly in accordance with directions in appointing the petitioner No. 1 on the basis of higher marks in B.A., which is not minimum qualification.
The Hon'ble Supreme Court in the case of Yogesh Kumar and Ors. v. Govt. of NCT, Delhi and Ors. , has held as under:
Recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made in considering the B.Ed. Candidates (and it has been pointed out that was so done because of the paucity of TTC candidates) a patent illegality cannot be allowed to continue. The recruitment authorities were well aware that candidates with qualification of TTC and B.Ed., are available yet they chose to restrict entry for appointment only to TTC pass candidates. It is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. It may be that presently more candidates available or recruitment to primary school are from B.Ed., category and very few from TTC category but whether for the aforesaid reasons B.Ed., qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but the Court cannot consider B.Ed., candidates for the present vacancies advertised as eligible.
13. The Hon'ble Supreme Court further held in the case of Secy. (Health) Department of Health & F.W. and Anr. v. Dr. Anita Puri and Ors. as under:
When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference would be given for higher qualification, the only meaning if conveys is that some additional weightage has to be given to the candidates with higher qualification. It cannot be construed to mean that a person with a higher qualification is automatically entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merits and selection of the candidate. The competence and merit of a candidate is adjudicated not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout its educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extra-curricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. Hence the High Court was wholly in error in holding that a person possessing M.D.S. Degree like respondent No. 1 was entitled to be selected and appointed.
14. It is clear from the above principle of law Laid down by the Hon'ble Supreme Court that on the basis of merit of higher qualification selection cannot be made. The Appointing Authority has a discretion to give some weightage to the higher qualification. Admittedly, in the present case the petitioners and respondent No. 7 all have the higher qualifications because respondent No. 7 has qualification of B.Sc., so if the weightage has to be given then all would receive the equal marks looking to the marks obtained by the respondent No. 7 in the High School and Higher Secondary, Le., 67.8% and 61.5% certainly the procedure adopted by the Gram Panchayat cannot be said to be fair and in accordance with the principle of law Laid down by the Hon'ble Supreme Court.
15. The next question is with regard to the direction issued by the Additional Commissioner for appointment of respondent No. 7. In my opinion, the Court cannot evaluate comparative merits of the candidates. In the present case this is to be left to the Panchayat to decide that whether, and what weightage it wants to give to the candidates on account of their higher qualifications. However, it is clear that the minimum qualification is of High School as per the scheme. Hence the bench mark for appointment has to be marks obtained by a candidate in High School in addition to this, it is the discretionary power Panchayat to assign some weightage to the higher qualifications.
16. Looking to the facts and circumstances of the case, the judgments cited by the learned Counsel for the petitioners are not applicable in the facts of the present case because the cases are related to the procedure fixed by the Gram Panchayat.
17. Consequently, the petition of the petitioners is disposed of with the following directions:
(A) The impugned order Annexure P-1 passed by the Additional Commissioner dated 21-7-2006 quashed to the extend with regard to direction for appointment of respondent No. 7. However, it is maintained with regard to quashing the resolution and appointment of the petitioner No. 1 as Panchayat Karmi.
(B) The respondent No. 6, Panchayat is directed to evaluate the comparative merits of the candidates as per the observations made by this Court in Para 15 and pass appropriate orders within a period of four weeks from the date of receipt of certified copy of this order.
(C) Panchayat is also directed to include the qualifications of respondent No. 7 obtained by him in B.Sc, B.Ed, and Computer.
No order as to costs.
C.C. as per rules.