Harshverdhan vs State of M.P. and Others

Sujoy Paul, J.—In this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order of the State Government dated February, 2003 (Annexure P-1) whereby the order of the Collector dated 14.9.2000 is cancelled.

The brief facts necessary for adjudication of this matter are as under:-

The respondent No. 3 issued an advertisement to fill up certain posts of Shiksha Karmi Grade-I. The present case is relating to the post of Shiksha Karmi Grade-I (Mathematics), which was reserved for O.B.C. category. The other candidates submitted their candidature for the said post. On 18.2.1999, a call letter for interview was issued which was cancelled on 27.2.1999. Another call letter dated 22.4.1999 was issued for interviewing the candidates on 28.4.1999. On 28.4.1999 itself (Annexure P-8) a request was made to provide experts for the interview Board by the Deputy Director, Education, Morena. This request was made to the Principal, Jawahar Navodaya Vidyalaya, Manpur, Jaura, District Morena. In turn, two subject experts were provided by the Navodaya Vidyalaya to the Selection Committee, who admittedly participated in the selection as a member of the Selection Committee in the capacity of expert members.

On 28.4.1999 the appointment orders of the candidates were issued. The respondent No. 4 was appointed as Shiksha Karmi Grade-1 (Mathematics). A complaint was made to the Collector, who passed the order dated 14.5.1999 (Annexure P-11) and cancelled the aforesaid appointment. A writ petition No. 806/99 was filed before this Court, which was decided by Annexure P-12. The respondent No. 4 herein was the petitioner in the said matter and this Court allowed this petition on the ground that as per Section 323 of the Municipalities Act, the Collector was not competent to cancel the selection or quash the appointment. Liberty was reserved to the Collector to pass orders in accordance with law. In turn, the Collector passed the order dated 14.9.2000 (Annexure P-13) and after assigning reasons, suspended the appointment order dated 28.4.1999. Collector seeking approval of his order, referred the matter to the State Government and in turn the State Government passed the order dated 30.12.2000 (Annexure P-14). The State Government did not approve the order of the Collector and set aside the order dated 14.9.2000 passed by the Collector.

At this stage, the petitioner filed W.P. No. 274/2001 which was decided by this Court on 26.6.2002. This Court found that the order of the State Government does not contain adequate reasons and, therefore, set aside the said order. The liberty was given to the State Government to pass appropriate orders and till such time it was directed that the status-quo with regard to service conditions be maintained. In turn, the State Government passed the order Annexure P-1 and did not approve the order of the Collector and set aside the order dated 14.9.2000. This order is now called in question in the present writ petition.

In the aforesaid factual backdrop, it is crystal clear that a long drawn battle was fought in the corridors of this Court by the parties herein.

Shri Pawan Dwivedi, learned counsel for the petitioner, assailed the selection on various grounds. It is apt to mention that all those grounds find place in the order of the Collector dated 14.9.2000. By reiterating the very same grounds and relying on the findings of the Collector of the said order, Shri Pawan Dwivedi, learned counsel for the petitioner submits that the entire selection process was vitiated and polluted. He submits that right from constitution of Selection Committee, till appointment, the selection process was not in consonance with the recruitment rules and fair play in action. He supported the findings in the order of the Collector.

Criticizing the order of the State Government, he submits that the State Government has admitted that various members of the Selection Committee were illiterate and were only able to put their signatures. Placing heavy reliance on certain findings of the State Government, he submits that the State Government did not disapprove the various findings of the Collector but merely came to the conclusion that such findings of the Collector only creates suspicion or doubt and suspicion or doubt alone cannot be the ground to set aside the entire selection process.

Shri Pawan Dwivedi, learned counsel for the petitioner, by placing reliance on M.P. Municipal Shiksha Karmi (Recruitment and Conditions of Service) Rules, 1998 (hereinafter referred to as ''R.R.S.'') submits that the members of the Selection Committee is prescribed in Schedule II of the said rules. He submits that if the constitution of the Selection Committee is tested on the anvil of the recruitment rules, it will be crystal clear that the Selection Committee was not constituted in consonance with the mandate of the rules. He submits that the selection was done in an undue haste. Various candidates could not receive the call letters for interview. The interviewing Committee delayed the interview process and it continue till late night. In the late night the Selection Committee finalized the selection and issued the appointment order on the very same day. The appointment orders contain signature of respondent No. 4 herein dated 28.4.1999.

Shri Pawan Dwivedi submits that if the entire factual backdrop is examined thoroughly, it will be clear that there was an undue haste in conducting the selection. The attendant circumstances show that there was malice and bias on the part of the respondents in conducting the selection. He relied on State of West Bengal and Others Vs. Shivananda Pathak and Others, paragraph 33 in support of his contention. Lastly, he submits that the final tabulation sheet does not contain the signature of the subject experts, nor it contains the signature of all the members of the Selection Committee. Comparing this final tabulation sheet of Mathematics subject with Chemistry''s final list, which is filed at page 19 with the application for taking additional documents on record, the petitioner''s counsel contends that the Chemistry''s list contains signature of all the members of selection committee, whereas the Mathematics list does not contain everybody''s signatures. He submits that there is a different chemistry which was playing in the selection of a Teacher for Mathematics.

Per contra, Shri Sameer Kumar Jain, learned counsel for private respondent and Shri N.S. Kirar, learned counsel for the employer supported the orders and selection process. Shri Kirar produced the original tabulation sheet and other sheets prepared by the members of the Selection Committee. However, the original record of the selection is not produced for the perusal of this Court. He submits that the original record is not available and only the tabulation sheets etc. are available.

Shri Kirar further submits that by Annexure P-8, two members were summoned from Navodaya Vidyalaya to substitute two members of the Selection Committee, who were absent. Interestingly, these two members have given highest marks to the petitioner and, therefore, the petitioner has no reason to raise his eye brows. He submits that the induction of these two members were contrary to law. He submits that this induction, at best, can be said to be a procedural irregularity which has not resulted into any prejudice to the petitioner. At the cost of repetition, Shri Kirar submits that in fact because of induction of these two members from the Navodaya Vidyalaya, the petitioner had secured marks in flying colours, otherwise other members have given him either zero or less marks. Thus, petitioner has no business to criticize the induction of those two members from the Navodaya Vidyalaya. Shri Kirar further submits that the scope of interference of selection process by this Court is limited. He submits that merely on the basis of doubt or suspicion, no interference can be made. Shri Kirar further submits that petitioner without demur or objection participated in the selection and after becoming unsuccessful cannot criticize constitution of the selection Committee. He submits that the petitioner is ''estopped'' in view of the law laid down by the Supreme Court in Dhananjay Malik and Others Vs. State of Uttaranchal and Others,

Mrs. Patankar, learned Government Advocate almost borrowed the same argument and supported the order of the State Government Annexure P-1.

Shri S.K. Jain, learned counsel for private respondent herein submits that the petitioner immediately after filing of this petition got appointment as Samvida Shiksha Karmi w.e.f. 3.7.2003 and he is still working on the said post and, therefore, no interference may be warranted. No actual prejudice is caused to the petitioner. On legal aspect, he borrowed the same arguments which were advanced by learned Government Advocate and by Shri Kirar.

No other points are pressed by learned counsel for the parties.

I have heard learned counsel for the parties and perused the record.

It is apt to mention here that on 14.9.1999, this Court directed the respondents to produce the original record for the perusal of this Court. The said order was later on repeated by this Court containing same direction. The matter was continuously kept alive because of continuous litigation between the parties and, therefore, in the considered opinion of this Court, it was just, fair and obligatory on the part of the respondent No. 3 to keep the records with due care and caution.

The main contention of the petitioner is that the selection committee was not properly constituted and it is not inconformity with the requirement of the rule. I find substance in the said submission. As required in the constitute, the selection committee is as under:-

SCHEDULE II

[See Rule 2(c) and Rule 5]

Members of the Selection Committee.

In case of Municipal Corporation the Mayor and in case of Municipal Council and Nagar Panchayat the President.

Municipal Commissioner or Chief Municipal Officer, as the case may be.

Deputy Director, Education or Assistant Commissioner, Tribal Welfare, as the case may be (Member Secretary).

Two experts in the Subjects nominated by the corporation in case of a Municipal Council or Nagar Panchayat by the Council.

All members of the Advisory Committee relating to the Education Department of Municipal Corporation or Municipal Council or Nagar Panchayat, as the case may be, of whom at least one belongs to the Scheduled Castes or Scheduled Tribes or Other Backward Classes. In case there is no Scheduled Castes or Scheduled Tribes or Other Backward Classes member in the Advisory Committee then the same shall be nominated by the Municipal Corporation or Municipal Council or Nagar Panchayat, as the case may be.

Admittedly, the selection committee was not in consonance with the said requirement. The question is whether at this stage for the said defect, selection and consequent appointment needs to be interfered with by this Court? Interestingly, the induction of two expert members from Navodaya Vidyalay is criticized by the petitioner stating that such decision was taken by Deputy Director, whereas it could have been taken by the appropriate committee. As reflected from the record, in fact, said two experts inducted from Navodaya Vidyalay had granted more marks to the petitioner qua local members of the selection committee. Local members of the selection committee had awarded ''0'' marks in interview to the petitioner, whereas the said two experts had awarded 15 marks to the petitioner in the said head. Thus, no prejudice is caused to the petitioner. This is also settled in law that a person after participating in the recruitment process/selection without any protest or demur on the constitution of the selection committee, cannot be permitted to assail the same after becoming unsuccessful. This view is taken by the Supreme Court in University of Cochin, Rep., by its Registrar, University of Cochin Vs. N.S. Kanoonjamma and others, as under:-

4... In fact, the first respondent also had applied for and sought selection but remained unsuccessful. Having participated in the selection, she is estopped to challenge the correctness of the procedure. That apart, we have already held that procedure was correctly followed and, therefore, the omission to mention in the advertisement that it was a special recruitment is of no consequence.

In Sadananda Halo and Others Vs. Momtaz Ali Sheikh and Others, the Apex Court held as under:-

It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. In OM Prakash Shukla Vs. Skhilesh Kumar Shukla where it has been held specifically that when a candidate appears in the examination without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise. The Court further made observations in para 34 of the judgment to the effect: (S. Vinodh Kumar case, SCC p. 107, para 19)

19... ''34. there is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not ''palatable'' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process

This view is followed by this Court in Sanjeev Yadav Vs. Lakshmibai National Institute of Physical Education and Others, which reads as under:-

25... Thus, the Apex Court has laid down that challenge to the selection committee by a candidate appearing in the examination should be entertained before he has participated in the proceedings. This principle is laid down by the Apex court on the principle that rules cannot be challenged after the game is over; one has to challenge the rules before participating in the game. This principle is laid down by the Apex Court in respect of candidates who at number of times have not processed defect in the constitution of selection committee.

On the basis of aforesaid, at this stage, I find no reason to upset the selection which had taken place way back in 2003. More so, admittedly petitioner has been appointed and is working on a different post elsewhere. In fact, in the final tabulation sheet signature of all the members of the selection committee are not there, yet no interference is warranted on this count because marks mentioned in the final tabulation sheet are tallying with the marks given by individual members of the selection committee in their individual sheets. Apart from this, even if certain members of the selection committee were shown to be illiterate, it will not vitiate the selection. It is not established that they were otherwise not competent to become member of the selection committee. They became member of the selection committee because of their position in the Nagar Panchayat. No qualification is prescribed in the rules for this purpose. Thus, this argument of the petitioner must also fail

In the considered opinion of this Court, the selection committee proceeded in haste. It is argued that many eligible candidates could not receive the call letters for interview. However, none of them are party before us. Petitioner admittedly received the interview call and participated in it. Thus, no prejudice is caused to the petitioner in any manner. In the considered opinion of this Court, the State Government has taken a plausible view that mere suspicion of undue haste etc. cannot be a ground to upset a selection. Irregularity has to be established to the hilt. In the aforesaid analysis, I find no reason to interfere in the matter. Petition fails and is hereby dismissed.