Ashish Singh vs State of M.P. and Others

Rajendra Menon, J.

Challenging the order-dated 28.2.2009 passed by the Collector, and the order-dated 23.3.2009 passed by the Commissioner in the matter of appointment of Panchayat Karmi, to the Panchayat in question, Petitioner has filed this writ petition.

In pursuance to a policy formulated by the State Government on 25.6.2007, for appointment of Panchayat Karmis, Gram Panchayat Nagda under Janpad Panchayat Khurai issued an advertisement on 5.7.2007 calling for desirable candidates to submit their application on or before 20.7.2007 as per the terms and conditions stipulated therein. The advertisement dated 5.7.2007 is Annexure P/1. In all 20 applications were received and on 21.8.2007, meeting was called for and a merit list was prepared. In accordance to merit, Petitioner having received 71% marks in Class X Examination was kept at Serial No. 1. However, Respondent No. 6, who had secured 64.2% marks, was directed to be appointed by resolution of certain Panchas on 21.8.2007 - Annexure P/2. As the resolution passed was not correct and as the merit was being ignored, Petitioner submitted a representation to the Collector vide Annexure P/3. On this being done, the Panchayat again called for meeting and the Nodal Officer was directed to be present in the Meeting. In the presence of the Nodal Officer again when the Gram Panchayat recommended for appointment of Respondent No. 6, the Nodal Officer did not agree and objected to the resolution-dated 25.9.2007 - Annexure P/4. Due to this, the Collector exercising powers u/s 86(2) directed the CEO to take action in the matter and on the same the Petitioner was appointed as Panchayat Karmi vide order-dated 10.3.2008 and thereafter Petitioner was notified as the Panchayat Secretary. The order of appointment of the Petitioner is Annexure P/5, which was issued on 24.3.2008. Petitioner joined the post and while he was so working Respondent No. 6 filed a petition before this Court and raised an objection to the effect that Petitioner was a minor and, therefore, could not be appointed. This Court disposed of the Writ Petition vide Annexure P/6 and directed the Collector to look into the matter. The Collector taking into consideration the totality of the circumstances and the requirement of paragraph 3.3 of the Scheme dated 12.9.95 found that Respondent No. 6 had passed the 12th Examination and, therefore, the Panchayat was entitled to give preference to Respondent No. 6 and, therefore, approved the appointment of Respondent No. 6. Aggrieved thereof Petitioner preferred an appeal and the same having been dismissed by the Commissioner, Petitioner has filed this writ petition.

That apart, it was pointed out that the Gram Panchayat has taken note of the fact that as on 1.1.2007 Petitioner would be less than 18 years of age and, therefore, he cannot be appointed. Emphasizing that no cut-off date for determining the age with reference to 1.7.2007 is prescribed and the Petitioner was more than 18 years and 2 months on 21.8.2007, which was the last date for submission of the application, challenge is made to the action impugned.

Shri Sanjay Patel, learned Counsel for the Petitioner, argued that the Petitioner was more than 18 years and 2 months as on 21.8.2007, as his date of birth is 2.6.1989 and the Respondents having arbitrarily fixed the cut-off date as 1.1.2007, which was neither indicated in the advertisement nor in the Policy-dated 12.9.95, Annexure P/10, the action of the Respondents in holding the Petitioner to be ineligible on this count is said to be illegal. That apart, he points out that the Petitioner being more meritorious having received 71% marks in the Class X Examination cannot be ignored and his merit given a go by, by selecting Respondent No. 6, who had only received 64.2% marks in the Class X Examination, by giving him preference on the ground that he had passed the Class 12th Examination. Contending that the only requirement is that a candidate should be Class X pass under the 10+2 Pattern of Education, Shri Sanjay Patel seeks for interference into the matter.

Respondents have resisted the claim of the Petitioner and submit that the order passed by the Collector and the Commissioner is reasonable, the Gram Panchayat has a right to law down further conditions for appointment and if in view of the aforesaid powers of the Gram Panchayat preference is given to Respondent No. 6, who is Class 12th pass, no illegality is committed in the matter. Accordingly, on this count Respondents contend that there is no merit in the petition and the same be dismissed.

I have heard learned Counsel for the parties and perused the records.

Two grounds are to be considered in this writ petition. The first is with regard to eligibility of the Petitioner to seek appointment with reference to his age. Admittedly, the date of birth of the Petitioner is 2.6.1989 and if the cut-off date for considering the eligibility is taken as 20.7.2007 i.e... the last date for submission of the application form, then the Petitioner is qualified being 18 years and 2 months old as on date. However, if the eligibility date is calculated with reference to the cut-off date as 1.1.2007 then the Petitioner would be ineligible. In the advertisement issued, it is only stated vide Annexure P/1, on 5.7.2007, that the candidate should not be less than 18 years of age. In this advertisement, no cut-off date for assessing the qualification or other criteria is mentioned. Even in the policy formulated by the State Government it is only stated that the candidate should be less than 18 years of age. Nothing is stipulated in the policy also with regard to the cut-off date fixed for determining the various criteria. The policies are Annexure P/10 dated 12.9.1990 and 13.8.2007. In both these policies, the conditions stipulated are that the candidate should have passed the 10th Class Examination under the 10+2 Pattern or should have passed the High School Certificate Examination. Thereafter, it is stated that the candidate should not be less than 18 years of age. 8-

The question, therefore, would be as to what should the cut-off date for determining the age of the candidate in the absence of the cut-off date being fixed either in the policy or in the advertisement. 9-

The answer to the said question is available in the judgment rendered by the Supreme Court in the case of Shankar K. Mandal and Others Vs. State of Bihar and Others, . After relying upon the earlier judgments of the Supreme Court in the case of Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another, ; Bhupinderpal Singh and Others Vs. State of Punjab and Others, ; and, Jasbir Rani and Others Vs. State of Punjab and Another, . It is laid down by the Supreme Court that the cut-off date, by reference to which the eligibility requirement imposed must be determined for seeking public appointment is the date appointed in the relevant recruitment Rules. Thereafter, it is stated that if no cut-off date is appointed by the Rules, then such date shall be appointed for the purpose in the advertisement issued calling for applications. Finally, it is laid down by the Supreme Court that if no such date is appointed either in the Recruitment Rules or in the advertisement, then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority. The aforesaid three principles are laid down by the Supreme Court for determining the cut-off date and if the aforesaid principle is applied in the present case, it would be seen that neither in the policy nor in the advertisement the cut-off date is appointed. That being so, the cut-off date has to be determined to be last date by which the applications were to be received by the competent authority and the said date would be 20.7.2007 as is evident from the advertisement - Annexure P/1 and if that be so, then on 20.7.2007 the Petitioner would be more than 18 years of age and therefore, he is qualified.

Accordingly, the findings of the Gram Panchayat and the authorities to the effect that the Petitioner was not qualified being below the age for recruitment is not correct and the same cannot be accepted. 11. The second question would be with regard to determination of merit. The minimum educational qualification prescribed is Class 10th pass under the 10+2 High School Examination Pattern. Admittedly, the Petitioner is 10th Class pass and is more meritorious than Respondent No. 5. Merely because Respondent No. 5 is more qualified and is 12th Class pass that cannot be a ground for ignoring the merit of the Petitioner, who is qualified for appointment and giving preference to Respondent No. 6 only because he is 12th Class pass, the decision taken by the Gram Panchayat by referring to Clause 3.3 of the policy dated 12.9.95 is nothing but an arbitrary decision. The provisions of Clause 3.3 contemplates that apart from the aforesaid criteria laid down, the Gram Panchayat can lay down further criteria in the advertisement. The provisions of Clause 3.3 does not mean that the Gram Panchayat can lay down such condition which is arbitrary in nature. The conditions to be laid down by the Gram Panchayat under Clause 3.3 has to be rational, reasonable and should be in conformity with the reasons for which it is laid down. The condition now laid down for giving preference to Respondent No. 6 is nothing but an arbitrary condition, as preference is given to him only because he has some extra qualification than the one prescribed, but if the minimum qualification is taken into consideration the Petitioner is more meritorious than Respondent No. 6

In that view of the matter, finding a more meritorious candidate to have been ignored for appointment and a less meritorious candidate appointed in his place, the action of the Respondents is found to be unsustainable.

Accordingly, this petition is allowed. Order-dated 28.2.2009 passed by the Collector, and the order-dated 23.3.2009 passed by the Commissioner are quashed and it is directed that Petitioner, who is more meritorious than Respondent No. 6 be appointed to the post in question.

Petition stands allowed and disposed of.