Raghvendra Singh vs State of M.P. and Others

Sheel Nagu, J.—The present petition with the consent of the parties is being decided at the stage of admission.

The respondents/State and its functionaries have filed return and application (I.A. No. 3723/2014) for dismissal of petition.

No return has been filed by the respondents No. 4 and 5.

Awaiting the reply of respondents No. 4 and 5 is not essential in view of the order passed infra which based solely on law and undisputed factual matrix.

In this petition under Article 226 of the Constitution of India, the order dated 11.12.2013 Annexure P-1 passed by Collector District Bhind is under challenged. By this impugned order, the Collector interfering with the final select list prepared for appointment of Gram Rozgaar Sahayak Gram Panchayat Asnehat, Janpad Panchayat Raun, District Bhind, has quashed the said final select list, in which the petitioner''s name was placed at serial No. 1. The said impugned order is passed by the Collector on the behest of the complaint made by Devendera Kumar/respondent No. 6 herein.

The principal ground of challenge to the above said impugned order is the absence of any authority with the Collector to interfere with the final select list as it is contended that no such power is bestowed by the guidelines for recruitment and appointment of Gram Rozgar Sahayak ("GRS" for brevity) issued by the MP State Employment Guarantee Council.

Learned counsel for rival parties are heard on the question of admission.

Undoubtedly, the recruitment and appointment to the post of GRS is exclusively governed by the aforesaid guidelines. There are no statutory provisions in that regard. Therefore, in view of the decision of the Apex Court in the case of Sant Ram Sharma Vs. State of Rajasthan and Another, , these guidelines govern the field of recruitment, appointment and remedies. The relevant portion is reproduced hereunder:--

"7. We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." 9. The aforesaid view in Sant Ram (Supra) is reiterated in the recent decision of the Apex Court in the case of State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another, .

The above said guidelines vide Annexure P-4 inter alia provide in Clause 17 that aggrieved by the appointment or termination of service of GRS, an appeal can be preferred to the District Programme Coordinator within 30 days. The appeal is to be decided within 90 days. The appellate authority has been further bestowed with suo motu powers of correcting any irregularities in the appointment or termination of GRS.

The said clause 17 of the said guidelines, thus, provides for remedy of appeal against the cause arising out of appointment or termination. Thus, the cause for entertainment of an appeal can not arise for reason relatable to any stage in the process of recruitment which has not culminated into an order of appointment. Thus, the said guidelines do not bestow any power upon any authority to interfere with any stage of recruitment including the final select list, unless the recruitment process culminates into issuance of an appointment of order.

In view of the above, there was no occasion, cause or authority before the Collector, Bhind to have entertained an application/appeal preferred by the respondent No. 5 against the final select list.

Before parting, it would be essential to deal with the two contentions of learned counsel for the petitioner. Firstly that the Collector is vested with the power under the M.P. Panchayat Appeal and Revision Rules, 1995 framed under Section 91 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, Act, 1993, and also that Clause 15(2) of the above said Guidelines to terminate the service of any GRS for sufficient reason.

Taking the first contention, it is seen that the concept of GRS is born out of Mahatma Gandhi National Rural Employment Guarantee Scheme framed under the National Rural Employment Guarantee Act, 2005. The object of creating the post of GRS is for proper implementation of the Mahatma Gandhi National Rural Employment Guarantee Scheme. No doubt, Panchayats at different levels are involved in the process of recruitment of GRS and the agreement for contractual appointment is also entered into between the Gram Panchayat and the appointee concerned, but neither the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, Act, 1993 nor any of the Rules framed thereunder provide for GRS as an employee. Evidently neither the 1993 Act nor any of the Rules framed thereunder govern the service conditions of GRS.

The aforesaid Guidelines exclusively provide various stages of conduction of recruitment process, the tenure of appointment, the agreement, the training and the administrative and disciplinary control and termination of service besides providing for remedy against the appointment and termination. These Guidelines are, thus, a complete code governing the service conditions of GRS, and thus in absence of any other statutory provision or executive instructions, alone prevail. Thus, the first contention of the learned counsel for the petitioner is repelled by holding that the Collector cannot derive any power from the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, Act, 1993 or any of the Rules framed thereunder or for assuming upon himself the power of appellate authority under Clause 17 of the Guidelines.

As regards, second contention pertaining to clause 15(2) of the Guidelines, it is evident that by a plain reading of the same, the power vested with the Collector is to terminate the services of the GRS on sufficient reasons meaning thereby that the said power can be exercised only when a person is appointed as GRS and therefore, the Collector can not resort to Clause 15(2) to interfere with the final select list which has not matured into an order of appointment.

Accordingly, this second contention also deserved to be and is, therefore, rejected.

In view of the findings supra, it is evident that the Collector while passing Annexure P-1 had no authority under the aforesaid Guidelines Annexure P-4 to interfere with the selection process under Clause 17 for the simple reason that the appointment to the post of GRS had not yet been issued.

Consequently, the writ petition deserves to be and is, therefore, allowed with following directions:

"1. The impugned order Annexure P-1 dated 11.12.2013 passed by the Collector, District Bhind is hereby set aside; and

The respondents however are free to assail the appointment of the petitioner in accordance with law."