Madhya Pradesh High Court
Shivam Upadhyay vs The State Of Madhya Pradesh on 4 September, 2015
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Writ Petition No.13761/2013
4.9.2015.
Shri K.K. Pandey, learned counsel for the petitioner.
Shri Deepak Awasthy, learned Govt. Advocate for the
respondents no.1 and 2.
Shri Sushil Mishra, learned counsel for the respondent
no.3.
The matter though is posted for consideration of I.A.
No.9185/2015 and I.A. No.9377/2015; however, with consent
of learned counsel for the parties, the matter is finally heard.
Petition is directed against the order dated 11.7.2013
passed by Additional Commissioner, Jabalpur Division, Jabalpur;
whereby, while setting aside order dated 6.2.2013 passed by
Collector, Jabalpur directing for appointment of petitioner on
the post of Gram Rogjar Sahayak, Gram Panchayat Padwar,
Janpad Panchayat Jabalpur Distt. Jabalpur, the Appellate
Authority directed for appointment of respondent No.3 on the
post of Gram Rogjar Sahayak.
Applications were invited for appointment to the post of
Gram Rogjar Sahayak between 18.6.2012 to 4.7.2012. The
eligibility criteria stipulated therein was : -
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Writ Petition No.13761/2013
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tkosxkA**
(Emphasis supplied)
That ten applications were received; whereon, merit list
was prepared; respondent No.3 was at serial No.1 with 112.22
marks. The petitioner was not found eligible because of non-
production of voter identity card in proof of residence, though
the petitioner had 120.66 marks. The petitioner raised objection
before the Committee. The Committee turned down the
objection whereon the petitioner preferred an appeal before
Collector, Jabalpur. Objection was raised by the petitioner on
the basis of voter identity card issued to him on 17.7.2012.
Taking into consideration the same, the petitioner was
appointed as Gram Rogjar Sahayak, Gram Panchayat Padwar,
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Writ Petition No.13761/2013
Janpad Panchayat Jabalpur, District Jabalpur on 22.8.2012
whereagainst respondent No.3, who was at serial No.1 in the
merit list, challenged the same before Collector, Jabalpur on the
ground that on the last date of receiving of application form,
petitioner was not possessing voter identity card and therefore,
was not eligible for appointment to the post of Gram Rogjar
Sahayak. The appeal preferred by respondent No.3 was
dismissed on 6.2.2013; whereagainst respondent No.3
preferred a revision petition before Additional Commissioner,
Jabalpur Division, Jabalpur who, by order dated 11.7.2013,
allowed the revision and while setting aside the appointment of
the petitioner as Gram Rogjar Sahayak, directed for
appointment of respondent No.3, who was at serial No.1 in the
merit list, on a finding that the petitioner was not having
requisite qualification i.e. voter identity card as on 4.7.2012, the
last date for applying for appointment to the post of Gram
Rogjar Sahayak.
It is contended on behalf of the petitioner that the
Appellate Authority erred in deciding the appeal ex parte and
that there being no bar for taking into consideration other
credential such as bona fide resident certificate to establish the
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Writ Petition No.13761/2013
factum of being bona fide resident, the insistence for having a
name in voter list of respective Gram Panchayat besides being
erroneous, is also contrary to the law down in Kailash
Chandra Sharma v. State of Rajasthan AIR 2002 SC
2877, Saurabh Chaudri v. Union of India AIR 2004 SC
361 and Nihal Himthani v. State of Uttarakhand 2013
AIR SCW 5368. On the anvil of these submissions, petitioner
seeks quashment of the impugned order.
Responding to the relief claimed by the petitioner, at the
outset, it is urged that the petitioner having not questioned the
validity of clause 2(v)3 of the Policy providing for appointment
of Gram Rojgar Sahayak at any stage and having participated in
the selection, is barred from questioning its validity at the stage
of writ petition for the first time.
As to merits of the matter, the contention on behalf of
respondent No.3 is that except voter identity card or the name
in the electoral roll, no other document in proof of residence is
acceptable under the scheme for appointment to the post of
Gram Rogjar Sahayak. It is further contended that the last date
for accepting the application form was 4.7.2012 and the
petitioner on the said date was not having voter identity card in
his favour nor his name was entered into electoral roll of village
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Writ Petition No.13761/2013
Padwar. It is urged that the voter identity card was issued to
the petitioner on 17.7.2012 that is much after the cut-off date
which was 4.7.2012. It is urged that since the petitioner was
not having the eligibility criteria, he was wrongly directed to be
appointed to the post of Gram Rogjar Sahayak.
Learned counsel for the petitioner defended that order,
however, he fails to establish that other than voter identity card
or name in the electoral roll, any other document could have
been relied upon for proof of residence.
Considered the rival submissions.
At the outset, it needs a mention that the proposition of
law laid down in Dr. Jagdish Saran v. Union of India AIR
1980 SC 820; whereby, the Apex Court while discarding the
institution-wise reservation holding that the same is
constitutionally circumscribed and may become ultra vires if
recklessly resorted to, held that reservation must be
administrated in moderation, if it is to be constitutional. It has
been observed -
49. We recognise that institution-wise reservation
is constitutionally circumscribed and may become
ultra vires if recklessly resorted to. But even such
rules until revised by competent authority or struck
down judicially, will rule the roost. That is why we
have to concede that until the signpost of `no
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Writ Petition No.13761/2013
admission for outsiders' is removed from other
universities and some fair percentage of seats in
other universities is left for open competition the
Delhi students cannot be made martyrs of the
Constitution.
50. Even so, `reservation' must be administered
in moderation, if it is to be constitutional. Some
central technical institutions like the All India
Institute of Medical Sciences, Delhi and Chandigarh
and the Pondicherry Medical College have a much
smaller fraction. Their circumstances may be
different and we do not have the full facts, neither
side having furnished more than fragments. Judicial
surmise is too weak to be of decisional certainty.
For reasons we have assigned 70% plus is too high
at the post-graduate level in the half-proved
circumstances. But we stop short of invalidating the
rule because the facts are imperfect, the course has
already started and the court must act only on sure
ground, especially when matters of policy, socio-
educational investigation and expert evaluation of
variables are involved. Judges should not rush in
where specialists fear to tread. We spare the
impugned regulation even though we are, prima
facie, sceptical about the vires thereof. To doubt is
not enough to demolish. When fuller facts are
placed, the court will go into this question more
confidently.
In Kailash Chand Sharma (supra), it has been held -
"14. Article 16 which under clause (1) guarantees
equality of opportunity for all citizens in matters
relating to employment or appointment to any
office under the State reinforces that guarantee by
prohibiting under clause (2) discrimination on the
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Writ Petition No.13761/2013
grounds only of religion, race, caste, sex, descent,
place of birth, residence or any of them. Be it noted
that in the allied article - Article 15 - the word
'residence' is omitted from the opening clause
prohibiting discrimination on specified grounds.
Clauses (3) and (4) of Article 16 dilutes the rigour
of clause (2) by (i) conferring an enabling power on
the Parliament to make a law prescribing the
residential requirement within the State in regard to
a class or classes of employment or appointment to
an office under the State, and (ii) by enabling the
State to make a provision for the reservation of
appointments or posts in favour of any backward
class of citizens which is not adequately
represented in the services under the State. The
newly introduced clauses (4-A) and (4-B), apart
from clause (5) of Article 16 are the other
provisions by which the embargo laid down in
Article 16(2) in somewhat absolute terms is lifted to
meet certain specific situations with a view to
promote the overall objective underlying the Article.
Here, we should make note of two things : firstly,
discrimination only on the ground of residence (or
place of birth) in so far as public employment is
concerned is prohibited; secondly, Parliament is
empowered to make the law prescribing residential
requirement within a State or Union Territory, as
the case may be, in relation to a class or classes of
employment. That means, in the absence of
parliamentary law, even the prescription of
requirement as to residence within the State is a
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Writ Petition No.13761/2013
taboo. Coming to the first aspect, it must be
noticed that the prohibitory mandate under Article
16(2) is not attracted if the alleged discrimination is
on grounds not merely related to residence, but the
factum of residence is only taken into account in
addition to other relevant factors. This, in effect, is
the import of the expression 'only'."
In Saurabh Chaudri (supra), it is observed by their
Lordships -
39. Ideal situation, although it might have been
to see that only meritorious students irrespective of
caste, creed, sex, place of birth, domicile/residence
are treated equally but history is replete with
situations to show that India is not ready therefore.
Sociological condition prevailing in India compelled
the makers of the Constitution to bring in Articles
15 and 16 in the Constitution. The said Articles for
all intent and purport are species of Article 14
which is the genies in a sense that they provide for
exception to the equality clause also. Preference to
a class of persons whether based on caste, creed,
religion, place of birth, domicile or residence is
embedded in- cur constitutional scheme. Whereas
larger interest of the country must be perceived,
the law makers cannot shut their eyes to the local
needs also. Such local needs must receive due
consideration keeping in view the duties of the
State contained in Articles 41 and 47 of the
Constitution of India.
...
88. The validity of institutional reservation must be judged on the touchstone of equality clause."
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Writ Petition No.13761/2013While the proposition of law in these cases cannot be disputed; however, there is no foundation laid by the petitioner challenging the vires of clause 2(v)3. When called upon to establish as to whether at any stage of the proceedings right from the stage of first appeal, revision and present petition as to whether the petitioner had questioned the validity of the rules in question, learned counsel for the petitioner fails to establish the same. In absence whereof, the contentions that selection of petitioner on the basis of Gram Rojgar Sahayak is de hors Article 14 and 16 of the Constitution of India cannot be gone into in the factual aspect of the present petition.
The petitioner having participated in the selection and having been selected, but later on found to be ineligible on the basis of the fact that the subsequently got his name entered in the electoral roll of the said Gran Panchayat, held ineligible and having not questioned the very clause on the basis whereof he got the appointment cannot for the first time be permitted to raise the issue in a writ petition. Thus, the petitioner does not draw any benefit from the decisions in Kailash Chandra Sharma, Saurabh Chaudri and Nihal Himthani (supra).
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Furthermore, as is apparent from the rule quoted above, it was an essential requirement that one must be possessing voter identity card or name in the electoral roll while applying to the post of Gram Rogjar Sahayak. It is also not in dispute that the application forms were to be filled in between 18.06.2012 and 04.07.2012. Thus 04.07.2012 was the cut-off date for considering the eligibility requirement.
In State of Haryana v. Anurag Shrivastava (1998) 8 SCC 399, it has been observed :
"4. Learned counsel for the 2nd respondent has relied upon two decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar and Rekha Chaturvedi v. University of Rajasthan. Both these judgments hold that the qualifications which have to be considered are those possessed as on the last date of filing applications. The High Court has, therefore, rightly held that the 2nd respondent did not possess the requisite qualifications at the material time and was not entitled to be selected under the advertisement of 7-12-1980. The appeal is, therefore, dismissed. There will be no order as to costs."
In U.P. Public Service Commission v. Alpana (1994) 2 SCC 723, wherein it has been observed :
"6. In the facts of the present case we fail to appreciate how the ratio of the said decision of this Court can be attracted. The facts of this case :: 11 ::Writ Petition No.13761/2013
reveal that the respondent was not qualified to apply since the last date fixed for receipt of applications was August 20, 1988. No rule or practice is shown to have existed which permitted entertainment of her application. The Public Service Commission was, therefore, right in refusing to call her for interview. The High Court in Writ Petition No. 1898 of 1991 mandated the Public Service Commission to interview her but directed to withhold the result until further orders. In obedience to the directive of the High Court the Public Service Commission interviewed her but her result was kept in abeyance. Thereafter, the High Court while disposing of the matter finally directed the Public Service Commission to declare her result and, if successful, to forward her name for appointment. The High Court even went to the length of ordering the creation of a supernumerary post to accommodate her. This approach of the High Court cannot be supported on any rule or prevalent practice nor can it be supported on equitable considerations. In fact there was no occasion for the High Court to interfere with the refusal of the Public Service Commission to interview her in the absence of any specific rule in that behalf. We find it difficult to give recognition to such an approach of the High Court as that would open up a flood of litigation. Many candidates superior to the respondent in merit may not have applied as the result of the :: 12 ::Writ Petition No.13761/2013
examination was not declared before the last date for receipt of applications. If once such an approach is recognised there would be several applications received from such candidates not eligible to apply and that would not only increase avoidable work of the selecting authorities but would also increase the pressure on such authorities to withhold interviews till the results are declared, thereby causing avoidable administrative difficulties. This would also leave vacancies unfilled for long spells of time. We, therefore, find it difficult to uphold the view of the High Court impugned in this appeal."
In the case at hand, admittedly, on 4.7.2012, the petitioner was not having essential qualification i.e. he was not having the voter identity card nor his name was registered in the electoral roll.
In view whereof, the revisional authority was justified in holding the petitioner was not having requisite qualification and directed the appointment of respondent No.3 to the post of Gram Rogjar Sahayak.
Consequently, petition fails and is dismissed. There shall be no costs.
(SANJAY YADAV)
vinod JUDGE