Ku. Rekha Yadav vs Harish Chandra Yadav and Others

Heard the counsel for the parties. As short question is involved, matter is taken up for final disposal forthwith, by consent.

The appellant is permitted to file this writ appeal as it is concerning the appointment of respondent No. 1 which came to be set aside at the instance of the appellant, who claimed to be more meritorious than the respondent No. 1 deserving appointment on the post of Panchayat Secretary.

Briefly stated, this second round of writ petition was filed by the respondent No. 1. In the first round in (W.P. No. 7236/2009) the respondent No. 1 had challenged the decision of the Additional Commissioner, Jabalpur in Appeal Case No. A-89-A-15/2008-09 whereby the appointment of the respondent No. 1 on the post of Panchayat Karmi of the Gram Panchayat, Kalpi, District Mandla came to be set aside and the Gram Panchayat was directed to take steps in accordance with the Circular issued by the State Government with regard to the appointment of Panchayat Karmi on the basis of merit. The learned Single Judge found that on the date of consideration of appointment, i.e., 8-8-2007, the respondent No. 1 was convicted for the specified offence and therefore, ineligible for being considered for appointment. The learned Single Judge referred Rule 10 of the M.P. Panchayat Service (Recruitment and General Conditions of Services), Rules, 1999 [for short ''Rules 1999''] and rejected the contention of the respondent No. 1 that the same has no application to the appointment of Panchayat Karmi. The learned Single Judge by a speaking judgment dated 24-11-2009, therefore, rejected the W.P. No. 7236/09 filed by the respondent No. 1. This judgment was challenged by the respondent No. 1 by way of Writ Appeal No. 1166/2009 which also came to be dismissed by the Division Bench of this Court on 30-11-2011. Relevant observation of the judgment of the Division Bench reads thus:

In our considered opinion, picking up a less meritorious candidate when more meritorious candidates are available for appointment, in absence of a cogent and rational reason for so doing, would amount to arbitrary capricious and irrational exercise of power on the part of the appointing authority. Similarly, the appointing an ex-convict on a public post when candidates with no past criminal past are available would again amount to whimsical exercise of power unless cogent and justifiable reasons are assigned by the appointing authority for picking up the ex-convict in preference over more clean candidates.

In the instant case, the Gram Panchayat has failed to disclose any such reason for appointing the appellant who is a less meritorious candidate and is an ex convict.

In view of the preceding analysis we are not inclined to interfere with the order passed by the learned Single Judge.

The appeal is accordingly dismissed.

Suffice to observe, the Division Bench negatived the claim of the respondent No. 1 for being appointed to or restoring his appointment on the post of Panchayat Karmi, being ineligible for consideration as on 8-8-2007. Notwithstanding this position, taking benefit of the subsequent decision of the High Court acquitting the respondent No. 1, the respondent No. 1 was advised to file fresh writ petition before this Court being Writ Petition No. 11421/12 which has been disposed of by the learned Single Judge without reference to the observations made by the learned Single Judge as well as Division Bench in the first round of litigation filed by the respondent No. 1., and more particularly, without examining the efficacy of these observations of this Court referred to above and including the question whether the subsequent development of acquittal of the respondent No. 1 in 2011 would make any difference to the finding already recorded by this Court. For, on 8-8-2007 the respondent No. 1 was held to be ineligible in view of Rule 10 of the Rules 1999. Without examining these aspects it was inappropriate to direct the Collector to examine the application of the respondent No. 1.

In our opinion, without going into any of the questions, which may have to be dealt with by the learned Single Judge in detail, we set aside the impugned decision and relegate the parties before the learned Single Judge for reconsideration of the Writ Petition No. 11421/12 on its own merits in accordance with law. We are not expressing any final opinion in that regard.

As aforesaid, the appellant is an aggrieved person and had filed an application before the Collector for setting aside the resolution passed by the Panchayat appointing the respondent No. 1 on the post of Panchayat Karmi, for which reason it is appropriate that the appellant is impleaded as respondent No. 1 in the restored Writ Petition No. 11421/12 as party respondent, before the restored writ petition is taken up for hearing by the learned Single Judge.

The appeal succeeds on the above terms.

The restored writ petition shall proceed before the learned Single Judge on 16-01-2014 for admission. The respondent No. 1 shall carry out amendment in the writ petition in the restored writ petition to implead the appellant as party respondent within one week from today, failing which the writ petition be treated as dismissed for non-prosecution without further reference to the Court. Amended copy of the writ petition be made over to the learned counsel for the appellant by the respondent No. 1 within one week from today, so that newly added respondent (appellant herein) can file reply to oppose the restored writ petition. In view of disposal of the main appeal companion application stands disposed of. It will be open to the respondent No. 1/writ-petitioner to make request for addition of Panchayat as party respondent in the writ petition, if so advised. That be considered on its own merits.