Kapil Dev Sharma vs State Of Madhya Pradesh And Others

With the consent of learned counsel for the parties, the matter is heard finally.

The instant petition has been filed questioning the validity of order dated 29.07.2016 (Annexure-P/20) passed by the Additional Commissioner, Sagar Division, Sagar. Before the Additional Commissioner, the selection on the post of Panchayat Karmi for village Runguwan was under challenge and the selection of the petitioner on the said post was questioned by respondent No.7 and in the order impugned finally it was held that instead of the petitioner, respondent No.7 was eligible to have been appointed as he was a resident of village Runguwan.

The petitioner challenged the said order mainly on the ground that the order passed by the Commissioner was illegal and contrary to the direction given by this Court in earlier round of litigation giving liberty to the petitioner to avail the alternative remedy of appeal and this aspect in respect of the liberty granted to the petitioner, has not been taken note of by the Commissioner in proper manner.

The learned counsel for the petitioner contended that the Selection Committee had opined that respondent No.7 was not resident of Runguwan, the village, for which the selection of Panchayat Karmi had been made and, therefore, as per the requirement of the Policy dated 27.01.2006 (Annexure-P/1) of Panchayat Karmi, in the requisite qualification, it is mentioned that the candidate should be local resident of the village for which the appointment is being made. He further submits that on earlier occasion when respondent No.7 was not found fit to be appointed as he was not found to be the resident of village Runguwan, a petition was filed by him challenging his non-selection and also the selection of the present petitioner. In the said writ petition, the petitioner (respondent No.7 herein) did not raise the point that it is not the mandatory requirement of the Policy that the candidate should be a resident of the same village where the selection is being made and it is only a preferential clause, therefore, he submits that at this juncture, the said ground cannot be raised.

As per the petitioner, raising such a ground is barred by law in view of the principle of constructive res judicata. He placed reliance upon a judgment of the Supreme Court reported in (2014) 11 SCC 744 parties being Shiv Chander More & Others Vs. Lieutenant Governor & Others. He further submits that if the order passed by this Court on earlier occasion is seen, then it is clear that the Court has considered the aspect that the certificates showing respondent No.7 to be the resident of village Runguwan, have been cancelled and, therefore, the petitioner (respondent No.7 herein) was granted liberty to avail the alternative remedy of appeal or to challenge the order of cancellation of certificates issued in his favour. He further submits that despite clear direction and confining the dispute by this Court, respondent No.7 chose to file the appeal only against the selection of the present petitioner, but has not filed any appeal or not challenged the order passed by the Authorities cancelling his certificates issued in respect of permanent resident of the said village.

Learned counsel for the petitioner submits that the Supreme Court in a case reported in (2007) 9 SCC 497 parties being P. Mohanan Pillai Vs. State of Kerela & Others, in paragraph-11 has held that the selection has to be made ordinarily as per the Rules prevailing at that point of time and whatever eligibility criteria is prescribed under the same, has to be followed. He further submits that as per Annexure-P/1, it was a mandatory requirement of the Scheme that the candidate should be the resident of same village but in the enquiry conducted to determine the residency of respondent No.7, it was found that he was not a resident of village Runguwan. So, there was no occasion for the Commissioner to consider the certificate issued in the year 1994 i.e. Annexure-P/19. He further submits that when respondent No.7 participated in the enquiry knowing fully well that the enquiry was being conducted for the purpose of determining his residency and the outcome was against him showing that he is no more a resident of village Runguwan, it was obligatory for him to challenge the same but he did not challenged it and, therefore, the Commissioner has erroneously held him to be a resident of village Runguwan only relying upon the document i.e. Annexure-P/19, whereas the same had been issued in the year 1994. For this purpose, he is relying upon a decision passed by this Court in W.P. No.12369/2009 (Rajesh Kumar Gupta Vs. State of Madhya Pradesh & Others), especially in paragraphs-5, 7 and 8, in which, finally it is held that if it is found that the candidate is not the resident of the local area and is not entitled to be considered for appointment, then next meritorious candidate is entitled to be appointed.

It is further submitted that though respondent No.7 was meritorious securing higher marks than the petitioner but that aspect is immaterial as he was not found to be a resident of village Runguwan and in view of the law laid-down by the High Court in case of Rajesh Kumar Gupta (supra), he should have been given preference and is otherwise entitled to be appointed on the post of Panchayat Karmi. He is also relying upon a decision of this Court passed in W.P. No.17283/2010 (Roop Ram Sen Vs. State of M.P. & others), in which also this Court has considered the aspect whether a candidate who is a resident of some other village, can be appointed on the post of Panchayat Karmi or not. As such, he is contending that the Commissioner has not considered the existing facts and circumstances of the case in an appropriate manner and erroneously held that in view of the certificate issued in favour of respondent No.7, he is the resident of village Runguwan and accordingly, he should be declared fit to be appointed directing the Chief Executive Officer, Zila Panchayat, Chhatarpur, to issue the order of appointment in favour of respondent No.7. He further submits that in view of the arguments advanced by him and the law laid-down by the Supreme Court as well as the High Court as referred above, the petition deserves to be allowed and the order passed by the Commissioner is not sustainable and therefore, it be set aside.

Per contra, Shri Tripathi, learned Government Advocate appearing for the respondents/State submits that in the advertisement issued on 17.05.2006 filed along with Document No.12042/2019, it is clearly stipulated that as far as possible, the candidate should be a resident of the same village for which the appointment is being made, therefore, it is not the mandatory requirement and the Commissioner has not committed any illegality while considering the document issued in favour of respondent No.7. As such, he has supported the order of the Commissioner asking for dismissal of the petition. He further submits that as per settled principle of law, the qualification existing or available with the candidate at the relevant point of time when the application was made, has to be taken note of and according to him, on the date of submitting the application, respondent No.7 had the certificate issued by the competent Authority in the year 1994 and, therefore, the Commissioner did not commit any mistake in taking cognizance of the said document holding that respondent No.7 is a resident of village Runguwan.

Shri Soni, learned counsel appearing for respondent No.7 submits that in earlier round of litigation, although the liberty was granted to him but that liberty was not of such a nature that it was mandatory for respondent No.7 to challenge the order of cancellation of his certificates and also challenge the appointment of the present petitioner in an appeal. He further submits that he chose to challenge the order of appointment of the petitioner and, therefore, he availed the alternative remedy of appeal in pursuance to the direction of this Court. He further submits that the issue is no more res integra because the Division Bench of this Court has already held that for appointment on the post of Panchayat Karmi, he should be a resident of a particular village, which is not a mandatory requirement, but it is a preferential clause and the same is applicable only when other things are similar. He relied upon the decision of this Court passed in case of Raghvendra Singh Vs. State of M.P. & others reported in [2015 (3) MPLJ 356] and further relied upon the decision of this Court passed in W.P. No.16620/2011 (Ku. Punam Verma Vs. State of Madhya Pradesh & Others). He further submits that the certificates issued in the year 1994 since not cancelled and were very much valid on the date of submitting the application and also while deciding the appeal by the Commissioner, the Commissioner has not committed any illegality in taking note of the said document and found that respondent No.7 is a resident of village Runguwan. The order of the Commissioner in respect of respondent No.7 is perfect, based upon sound reasoning and, therefore, the same does not call for any interference. He further submits that the selection has to be made exclusively on the basis of the merits of the candidate and he was otherwise admittedly meritorious candidate securing maximum marks in the selection and, therefore, the final list prepared by the Selection Committee was not proper and was rightly found illegal by the Commissioner appointing respondent No.7 to the post of Panchayat Karmi.

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

The core question emerges for adjudication is whether respondent No.7 is a resident of village Runguwan and if not, his appointment to the post of Panchayat Karmi is valid or not.

As per the selection made and list prepared by the Selection Committee, respondent No.7 was found meritorious as he secured highest marks amongst the candidates who had applied for the post of Panchayat Karmi, but as he was not found to be a local resident, he was not given the appointment. He filed a petition before this Court challenging the action of the authorities selecting the petitioner to the said post, which was registered as W.P. No.3099/2006. The petition was disposed of vide order dated 28.09.2011 with the observation that the petitioner therein can avail the remedy challenging the appointment of the petitioner and also about the findings recorded by the Naib Tehsildar removing his name from the voter list as he was not found to be a resident of village Runguwan.

An appeal was preferred by respondent No.7 before the Commissioner challenging the appointment of the petitioner to the post of Panchayat Karmi and also filed the certificate of his residence showing him to be a resident of village Runguwan. The Commissioner allowed the said appeal setting-aside the order passed by the Collector on 11.01.2018 rejecting the appeal preferred by respondent No.7 and directed that respondent No.7 namely, Ramcharan Pal be appointed to the post of Panchayat Karmi as he is meritorious and secured maximum marks i.e. 75.60. Although the Commissioner has also observed that respondent No.7 is a resident of village Runguwan.

Learned counsel for the petitioner has assailed the order passed by the Commissioner mainly on the ground that the observation made therein regarding respondent No.7 to the extent that he was permanent resident of village Runguwan, is erroneous and incorrect. He further submits that in W.P. No.3099/2006, this Court has directed the petitioner in that case (respondent No.7 herein), to challenge the order of the Collector and also granted him the liberty to challenge the findings given by the Tehsildar, removing his name from the voter list of village Runguwan, but without challenging the said finding of the Tehsildar, he cannot claim to be a resident of village Runguwan and as such, the order passed by the Commissioner is liable to be set-aside because the finding given by the Tehsildar removing his name from the voter list of village Runguwan, has attained finality and again observing respondent No.7 to be a resident of village Runguwan by the Commissioner is not proper and the same is hit by res judicata.

Learned counsel for the petitioner has relied upon the decision of this Court in the case of Rajesh Kumar Gupta (supra), wherein learned Single Bench has observed as under:-

"8. .......... That being so, once it is found that petitioner is not resident of the local area and is not entitled to be considered for appointment, thus the next meritorious candidate i.e. respondent No.4 is entitled to be appointed and in so doing respondents have not committed any error, warranting interference."

Learned counsel for the petitioner has also relied upon the decision passed in the case of P. Mohanan Pillai (supra), in which it is held that- "ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedure as were prevailing on the date of vacancy should ordinarily be followed."

Learned counsel for the petitioner has also placed reliance upon the decision passed in the case of Shiv Chander More (supra), pointing out that- once the Tehsildar has given the finding in respect of respondent No.7 that he was not a resident of village Runguwan and his name was removed from the voter list, the said finding was never challenged, has attained finality and as such, claiming the petitioner to be a resident of village Runguwan is hit by the principle of res judicata.

Per contra, learned Government Advocate appearing for the respondents/State submits that there is nothing illegal on the part of the Commissioner to hold that the appointment of the petitioner was invalid as he was not meritorious candidate because respondent No.7 secured maximum marks i.e. 75.60. He further submits that the issue regarding local resident is not mandatory requirement and the same is not res integra in view of the Division Bench decision passed in the case of Raghvendra Singh (supra), W.P. No.16620/2011 so also R.P. No.212/2014 [Ku. Punam Verma] (supra) and further, the decision reported in 2016 (2) JLJ 305 [Leelavati Yadav Vs. Additional Commissioner, Rewa].

In all these cases, it is held that for appointment of a Panchayat Karmi, local residence of a candidate is not a mandatory requirement and therefore, the order passed by the Commissioner, as per the respondents, cannot be said to be illegal because the Commissioner has finally observed that being a meritorious candidate, respondent No.7 was entitled to be appointed.

Though, it is observed by the Commissioner that respondent No.7 was resident of village Runguwan, but even otherwise, that finding has no direct relevance and impact over the issue involved in this case as per the law laid-down by the Division Bench and other Benches holding that local residence is not a mandatory requirement for appointing a person to the post of Panchayat Karmi.

I am convinced with the contentions raised by learned counsel for the respondents because in the case of Raghvendra Singh (supra), the Division Bench has taken note of the provisions of the Scheme of Panchayat Karmi, under which they used to be appointed. The observation made in paragraph-4, are as under:-

"4. Shri A.M. Trivedi, learned Senior Counsel took us through the scheme and the advertisement issued wherein it is stipulated that as far as possible preference may be given to a local candidate and tried to emphasize that in the scheme for appointment of Panchayat Karmi as a local candidate has to be given more weightage and preference, the Writ Court has committed an error in granting appointment to a person who is not a local resident of the village. Referring to a Division Bench judgment of this Court in the case of Neelam Singh Sikarwar vs. State of K.P. and others, 2015(1) MPLJ 297 in the matter of appointment of Aanganwadi Karyakarta and the principles laid down in the said case with regard to Aanganwadi Karyakarta being a resident of the local village, Shri A.M. Trivedi, learned Senior counsel argued that the learned Writ Court has committed an error in rejecting the claim of the appellant. It was argued that when under the Panchayat Karmi Yojna and Scheme there is a stipulation to the following effect :

"ऐसा उम्मीदवार यथासंभव स्थानीय अथवा पंचायत क्षेत्र में निवासरत हो, इससे कार्य करवाने में आसानी होगी।"

The Writ Court has committed an error in rejecting the objection of the petitioner. It is argued that appointment of Panchayat Karmi and Aanganwadi Karyakarta are based on schemes. Panchayat Karmis are not civil post holders and in view of the law laid down in the case of Neelam Singh Sikarwar (supra), learned Court has committed an error."

Likewise, the High Court in the case of Leelavati Yadav (supra), has taken note of the Circulars issued by the Panchayat Department on 27.01.2006 and 13.08.2007, in which it is instructed that appointment should be made taking note of the respective merit of the candidates and further instructed that the merit should be the prime consideration for appointment.

In view of the above, undisputedly respondent No.7 was meritorious candidate and therefore, he was entitled to be appointed on the post of Panchayat Karmi irrespective of the fact whether or not he was a resident of village Runguwan.

Accordingly, I do not find any substance in the contentions raised by learned counsel for the petitioner. Thus, the petition being meritless, deserves to be and is hereby dismissed.