Madhya Pradesh High Court
Smt.Sadhana Gupta vs The State Of Madhya Pradesh on 12 March, 2019
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WP-3887-2019
Smt. Sadhana & Ors. vs. State of M.P. & Ors.
THE HIGH COURT OF MADHYA PRADESH
WP-3887-2019
(Smt. Sadhana & Ors. vs. State of M.P. & Ors.)
Gwalior, Dated 12.03.2019
Shri Prashant Sharma, learned counsel for the petitioners.
Shri Pratip Visoriya, learned Government Advocate for
respondents/State, appears on advance notice.
Heard on admission.
2. Petitioners, who are Patwaris in the services of the State of Madhya Pradesh, appeared in the Naib Tahsildar, Departmental Recruitment Test 2018 held on 30/06/2018. The said Test was held under the Scheme for filling up posts of Naib Tahsildar by Limited Competitive Examination from amongst the Ministerial Services of the Offices of Revenue Board, Commissioner Land Records and Settlement, Commissioners of Divisions and Collectors and Patwari/Revenue Inspectors Cadre under Schedule V of Madhya Pradesh Junior Administrative Service (recruitment and service conditions of Service) Rules, 2011. The petitioners, however, could not qualify as the marks obtained by them being less than 65% which is the minimum marks prescribed for selection under General Category as per first Proviso to Item No.3 in Schedule V of the Rules 2011.
3. Initially, i.e., with the advent of Rules of 2011 Item No.3 of 2 WP-3887-2019 Smt. Sadhana & Ors. vs. State of M.P. & Ors.
Schedule V stipulated:
"3. Selection.- Selection for appointment shall be based on (i) mark obtained in the written examination held under this Scheme and (ii) appraisal of annual confidential reports of the employee concerned of the last five years."
4. That, by amendment caused vide Notification No.F-1-5- 2010-VII-4A in exercise of powers conferred by the proviso to Article 309 of the Constitution published in Madhya Pradesh Rajptra (Asadharan) dated 30/07/2016 following proviso were inserted:
"Provided that for selection under this scheme the candidate shall have to obtain minimum sixty five percent marks in this examination.
Provided further that for selection under this scheme the candidate of Scheduled Castes and Scheduled Tribes shall have to obtain minimum fifty percent marks in this examination.
Provided also that the selected candidate under this scheme not be appointed as a Naib Tehsildar,
(a) During the pendency of any department enquiry in which charge sheet has been issued;
(b) If any adverse remark is mentioned in his ACR (Annual Confidential Report);
(c) If any criminal proceeding is pending before any court or Authority;
(d) If any penalty is imposed upon him within preceding five years."
5. The petitioners when they appeared in the Test held on 3 WP-3887-2019 Smt. Sadhana & Ors. vs. State of M.P. & Ors.
30/06/2018, the said amendment was in vogue. However, having failed to acquire 65% marks, the petitoners have filed this Writ Petition for Clause III of Schedule V of Rules 2011 to be declared ultra vires and for treating the petitioners to be qualified having more than 60% of marks as prescribed in Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Adhiniyam, 1994 (hereinafter referred to as "the Act of 1994").
6. It is urged that the provisions contained in the Act of 1994 is complete statute in relation to matters connected and incidental to reservation to Scheduled Castes and Scheduled Tribes wherein under Rule 4(a) the relaxation in qualifying marks in examination has been prescribed to the tune of 10% and any deviation therefrom is impermissible under law. It is urged that the amendment carried out in the year 2016 is contrary to the Act of 1994. It is urged that since the amendment of 2016 is in conflict with the provisions contained in the Act of 1994, be struck down. It is further contended that out of 19 seats reserved in favour of Women and 4 of General Category could qualify and no OBC women candidates have been selected out of 5 seats reserved in their favour. On these grounds, the petitioners have questioned the validity. 4
WP-3887-2019 Smt. Sadhana & Ors. vs. State of M.P. & Ors.
7. So far as the challenge on the anvil of the Act of 1994, the same is misconceived. The Act of 1994 was brought in vogue to provide for the reservation of vacancies in public services and posts in favour of the persons belonging to the Scheduled Castes, Scheduled Tribes and other Backward Classes of citizens and for matters connected therewith or incidental thereto. Section 4 deals with fixation of percentage for reservation of posts and standard of evaluation. Sub-section (4-A) whereof empowers the State Government may by general or special order make any provisions in favour of the members of the Scheduled Castes and the Scheduled Tribes, for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of recruitment and promotion to any class or classes of services or posts in connection with the affairs of the State. Similarly, Rule 4(A) of Madhya Pradesh Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vargon Ke Liye Arakshan) Rules 1998 stipulates that the candidates of Scheduled Castes and Scheduled Tribes shall get relaxation of 10% marks in minimum qualifying marks but their selection shall be made on the basis of merit of the selection list of the Scheduled Castes/Scheduled Tribes.
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WP-3887-2019 Smt. Sadhana & Ors. vs. State of M.P. & Ors.
8. In the case at hand, the recruitment is as per the Scheme stipulated under Chapter V of Madhya Pradesh Junior Administrative Service (Recruitment and Service Conditions of Service) Rules, 2011. These Rules, evidently, are framed under Article 309 of the Constitution for the members of Madhya Pradesh Junior Administrative Service and the validity of the amendment in these Rules of 2011 cannot be tested on the anvil of the stipulation contained in the Act of 1994 or Rules made thereunder. As both have different field of operation, even otherwise prescription of qualification being the prerogative of the employer, the proviso inserted in Item No.3 of the Schedule V of the Rules 2011 vide amendment dated 30/07/2016 cannot be held to be arbitrary or ultra vires merely because it prescribes separate minimum percentage of marks for selection in favour of candidate of Scheduled Castes and Scheduled Tribes and other than Scheduled castes and Scheduled Tribes.
9. The principle of law is settled that it is within the domain of the Appointing Authority to lay down requisite qualifications for recruitment to the service. In commissioner, Corporation of Madras vs. Madras Corporation Teachers' Madnram:[AIR 1997 SC 2131], it is held:
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WP-3887-2019 Smt. Sadhana & Ors. vs. State of M.P. & Ors.
"4......... It is well settled legal position that it is the legal or executive policy of the Government to create a post or to prescribe the qualifications for the post. The Court or Tribunal is devoid of power to give such direction..........."
10. In Union of India & Another vs. N. Chandrasekharan & Others:[(1998) 3 SCC 694], it is held:
"13. We have considered the rival submissions in the light of the effects presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report........."
11. In Surinder Singh vs. Union of India & Others:[(2007) 11 SCC 599], it is held:
"16. In our view, in service jurisprudence the prescription of preferential qualification not only refers to numeric superiority but is essentially related to better mental capacity, ability and maturity to shoulder the responsibilities, which are entrusted to the candidates after their selection to a particular post. All the more, it is important for efficient and effective administration. The basic object of prescribing a minimum qualification is to put a cut off level for a particular job in accordance with the minimum competency required for the performance of that job. The object of 7 WP-3887-2019 Smt. Sadhana & Ors. vs. State of M.P. & Ors.
prescribing preferential qualification is to select the best amongst the better candidates who possess more competence than the others. Sub- clause (iv) of Clause 2 puts a limit with respect to preferential qualification by way of a clear stipulation that no preference should be given to the qualification above Matriculation. Hence, the preferential qualification was considered to be more effective and efficient and also it was a clear assumption that a candidate possessing the same is best suited for the post in question."
(emphasis supplied)
12. Furthermore, the petitioners having participated in the examination having full knowledge that unless they get 65% marks, they will not be selected, are now estopped from questioning the criteria contained in Item No.3 Schedule V in existence since 30/07/2016.
13. In Dhananjay Malik & Others vs. State of Uttaranchal & Others:[(2008) 4 SCC 171], it is held:
"9. In the present case, as already pointed out, the writ petitioners- respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done."
14. In Government Of Andhra Pradesh Etc. ... vs P. Dilip Kumar And Anr:[1993(2) SCC 310], it is held: 8
WP-3887-2019 Smt. Sadhana & Ors. vs. State of M.P. & Ors.
"15........It is true that notwithstanding the preference rule it is always open to the recruiting agency to prescribe a minimum eligibility qualification with a view to demarcating and narrowing down the field of choice with the ultimate objective of permitting candidates with higher qualifications to enter the zone of consideration..........."
15. In view whereof, we do not find any merit in the challenge to the proviso inserted in Item No.3 of Schedule V of the Rules 2011.
16. Consequently, petition fails and is dismissed. No costs.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
pwn*
Digitally signed by PAWAN KUMAR
PAWAN
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH
GWALIOR, postalCode=474011,
st=Madhya Pradesh,
KUMAR
2.5.4.20=baa18e83a2af7a1611e0b
b9811a10869c6907cfbb375a7a236
a25ad39f3a2027, cn=PAWAN
KUMAR
Date: 2019.03.19 17:07:10 +05'30'