R.S. Sisodiya vs State of M.P. and Others

C.K. Prasad, J.

By this Writ Petition, filed under Article 226 and 227 of the Constitution of India, Petitioner prays for quashing of the order dated 28.7.98 (Annex. P-3), whereby, the Nagar Panchayat has appointed Respondent No. 7 Gajodhar Prasad Ahirwar as Shiksha Karmi, Grde I and posted him at the Government Higher Secondary Schoool Barigarh, by issuance of an appropriate writ, order or direction. Petitioner further prays for direction to Respondent No. 3 to consider his case for appointment as such.

Facts necessary for the decision of the present Writ Petition are that Nagar Panchayat i. e. Respondent No. 3 invited application (Annex. P-1) for appointment to the post of Shiksha Karmi, Grade I. For appointment to the post of Shiksha Karmi, Grade I, according to the advertisement, a candidate was required to possess Post-Graduate degree in I Ind Class in the concerned subject. Advertisement further stated that age relaxation shall be given to the members of the reserved categories, according to the policy of the State Govt. However, the advertisement did not contemplate relaxation of qualification in case of any category of candidates. Petitioner as also Respondent No. 7 offered their candidature for appointment as Shiksha Karmi, Grade I. Petitioner has obtained Post-Graduate degree in I Ind Class whereas, Respondent No. 7 possesses Post-Graudate degree in II Ird Class.

It is the assertion of the Petitioner that although Respondent No. 7 is not eligible for appointment as Shiksha Karmi, Grade I, on account of the fact that he does not possess Post-Graduate degree in I Ind Class, still his wife being the President of the Nagar Panchayat, managed to secure interview for him through the Collector and ultimately procured appointment for him. Petitioner''s assertion that Respondent No. 7 does not possess Post-Graduate degree in I Ind Class has not been controverted by the Respondents. Stand of Respondents No. 3, 4 and 6 in the return is that vide notification dated 12.8.96, (Annex. R-2), it has been decided that the candidates belonging to the Scheduled Caste and Scheduled Tribe shall be eligible in case they possess Post-Graduate degree in II Ird Class. It has further provided that preference shall be given to the candiates who possess Post-Graduate degree in Ist or I Ind Class. Accordingly, it is the stand of the respondnets in the return that Respondent No. 7 is eligible for being appointed as Shiksha Karmi.

I have heard Sri A. S. Raizada for the Petitioner, Sri S. N. Khare, Govt. Adv. for the State of Madhya Pradesh, Shri R. N. Singh for Respondents No. 3, 4 and 6 i. e. Nagar Panchayat, its President and the Collector as also Sri P. N. Dubey for respondnet No. 7 i. e. the appointed person.

In view of the rival stand, it is inexpedient to go into the question as to how and at whose instance, Respondent No. 7 was called for interview and ultimately selected for appointment. However, there is no denying the fact that the Collector has dealt with the matter and found Respondent No. 7 eligible for appointment. It is relevant here to state that Petitioner has alleged malafide against the Collector, who has been impleaded as Respondent No. 6.

State Government in exercise of its power conferred u/s 433 with Section 58 of the M. P. Municipal Corporation Act and Section 355 read with Section 95 of the M. P. Municipalities Act, has framed M. P. Municipality Shiksha Karmi (Recruitment & Conditions of Service) Rules, 1993. It is common ground that appointment to the post of Shiksha Karmi, Grade I is governed by the aforesaid rule. Method of selection and recruitment, qualification and other eligibility clauses have been provided under the M. P. Municipality Shiksha Karmi (Recruitment and Conditions of Service) Rules, 1998, hereinfafter referred to as the Recruitment Rules. Schedule II of the Recruitment Rules provides for the age limit, the educational qualification and the members who shall constitute the Selection Committee in case of appointment to the post of Shiksha Karmi, Grade I, Grade II and Grade III. Schedule II has further provided for relaxation in the maximum age limit for the members of the Scheduled Castes, Scheduled Tribes and Other Backward Classes as also women-candidtes and candidates who had worked for atleast 3 years in the educational institution under the supervision of the Municipality. Relevant portion of Schedule II is being reproduced herein below:

SCHEDULED -II (See Rules 2 (c) and Rule 5)

S No.

ShikshaKarmi Grade

Minimum age

Maximum age

Educational Qualification

Members of the Selection Committee

(1)

(2)

(3)

(4)

(5)

(6)

Grade - I

21

35

IInd Class Post Graduate Degree in the related subject or equivalent.

Chairman of the Standing Committee

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).

(1)

(2)

(3)

(4)

(5)

(6)

Two experts in the subjects nominated by the Education Committee of whom one shall be a woman, and

All members of the Education Committee 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 Education Committee then the same shall be nominated by the Municipal Corporation or Municipal Council, as the case may be.

Note -(1) The relaxation in the maximum age limit for Scheduled Castes, Scheduled Tribes and Other Backward Classes will be as per Government Rules.

(2) There will be relaxation of ten years in the upper age limit for women candidates over and above all other relaxation.

(3) The relaxation in the upper age limit may be given up to three years for the candidates who had worked for at least three years in the educational institutions under the supervision of the Municipality.

Mr. Raizada, appearing on behalf of the Petitioner contends that appointment to the post of Shiksha Karmi Grade I is governed by the statutory rule referred to above and Recruitment Rule having not provided for any relaxation as regards the qualification for the members of the reserved category, candidature of Respondent No. 7 ought not to have been considered. Alternatively, he submits that even if relaxation in qualification is permissible, it was incumbent upon the employer to incorporate the same in the advertisement itself. As stated earlier, in the advertisement issued by the Nagar Panchayat although It has been stated that relaxation in higher age shall be given to the members of the reserved categories as also the women candidates according to the policy of the State, but the advertisement nowhere stated that relaxation in qualfication shall be given in any circumstance. Accordingly, stand of Sri Raizada is that no relaxation in qualification is permissible under the Recruitment Rules and in any view of the matter, Nagar Panchayat can not relax the same in case of Respondent No. 7 in the absence of any such stipulation in the advertisement as many other candidates who would have been otherwise eligible did not apply on the ground that they did not possess Post-Graduate Degree in I Ind Class. This according to Sri Raizada vitiates the appointment of Respondent No. 7 as Shiksha Karmi Grade I.

Sri R. N. Singh, however, appearing on behalf of Respondents No. 3, 4 and 6 contends that according to the decision of the State Govt. dated 12.8.1996 (Annex. R-2), candidates belonging to the Scheduled Castes and Scheduled Tribes and possessing Post-Graduate Degree in II Ird Class are also made eligible and in that view of the matter, Respondent No. 7 was rightly considered and selected for appointment as Shiksha Karmi, Gr. I. As regards non-stipulation of the relaxation clause in the advertisement in regard to the qualification, Sri Singh contends that Petitioner can not be permitted to agitate this question and the same can be gone into only at the instance of persons, who did not offer their candidature and were entitled for relaxation in terms of the State Govt. decision dated 12.8.1996.

Sri S. N. Khare, however, appearing on behalf of Respondent State has taken a stand that the decision of the State Govt. dated 12.8.1996 shall have no bearing on the question under consideration as the aforesaid decision was taken before framing of the statutory rules governing the appointment. His stand is that appointment to the post of Shiksha Karmi has to be strictly made in accordance with the procedure and on the basis of qualification laid down in the Recruitment Rules and the Recruitment Rules having not contemplated any relaxation in qualification so far as the members of the reserved categories are concerned, Respondent No. 7''s eligibility can not be decided with reference to the State Govt. decision dated 12.8.96.

Shri P. N. Dubey, supporting the appointment of Respondent No. 7 besides adopting the argument of Sri R. N. Singh further contends that in view of Rule 5 (7) of the Recruitment Rules, Respondent No. 7 was required to be called for interview as he worked in the school of the Municipality for more than one session; which necessarily implies that Respondent No. 7 is eligible for appointment.

Having appreciated the rival submission, I am of the opinion that Respondent No. 7 does not possess the essential qualification and hence his appointment can not be sustained. Schedule II of the Recruitment Rules quoted above in no uncertain terms provides the qualification of I Ind Class Post-Graduate degree for appointment as Shiksha Karmi, Grade I and although the statutory rule contemplate relaxation of age for the members of the reserved categories, women candidates and candidates who has worked for atleast 3 years in the educational institution under the supervision of the Municipality, but it has nowhere provided for relaxation of qualification in case of the reserved categories. The decision of the State Govt. making members of the Scheduled Castes and Scheduled Tribes eligible for appointment who are possessing Post-Graduate degree in II Ird Class, is prior to the framing of the Recruitment Rules i.e. the time when the appointments were used to be made according to the executive instructions. Now that the statutory rule has been framed, any appointment has to conform to the qualification and other eligibility criteria provided in the rule. Hence, I am of the opinion that the decision of the State Govt. dated 12.3.96 (Annex. R-2), on the basis of which Respondent No. 7 is purportedly to have been found to be eligible can not be taken note of. It is relevant here to state that the Recruitment Rules itself has provided for relaxation of upper age limit in regard to the members of the reserved categories and other categories, but there is no rule which has provided for relaxation in educational qualification. I am of the opinion that educational qualification having been fixed under the Recruitment Rules itself, in the absence of any provision in the rule providing for relaxation, no relaxation in qualification is permissible in the present state of the rules.

Even if I assume in favour of the Respondents that relaxation in qualification is permissible under the Recruitment Rules, it was incumbent upon the Nagar Panchayat to make it known to all the candidates while issuing the advertisement. As stated earlier, the advertisement nowhere stated that relaxation in qualification shall be made in case of the members of the reserved categories. If the Nagar Panchayat is permitted to do the same in regard to Respondent No. 7, many candidates who could have been otherwise eligible might not have offered their candidatures, because they did not possess Post-Graduate degree in II class and this will infringe the rights of many other persons. If the Nagar Panchayat is allowed to do the same, fundamental rights of many persons get infringed and this aspect of the matter can be gone into at the instance of the Petitioner. This infirmity also renders appointment of Respondent No. 7 vitiated in the eye of law.

Now, adverting to the submission of Sri Dubey that Rule 5 (7) of the Recruitment Rules make Respondent No. 7 eligible, it is apt to reproduce Rule 5 (7), which reads as under

(5) Method of Selection and Recruitment -

xxxxxx

(7) After scrutiny of the applications received, categorywise merit list of the candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes and general category shall be prepared on the basis of the marks obtained in the qualifying examination prescribed for the post on the basis of the number of vacancies in each category three times the number of vacancies to be filled in each category shall be called for the interview or and test according to the merit list. Such candidates who have worked minimum for one session in the schools of a muunicipality will be called for interview or test.

Rules 5 of the Recruitment Rules provides for method of selection and recruitment. Rule 5 (7) of the Recruitment Rules inter alia provides that candidates numbering three times the number of vacancies in each category shall be called for the interview. This rule further provides that a candidate who has worked for minimum one session in the school of a municipality will be called for interview. Thus, Rule 5 (7) of the Rules has prescribed the number of candidates who shall be called for interview and it has further provided for calling for interview such candidates who have worked minimum for one session in the school of the municipality. In my opinion, this rule requires the municipality to call fixed number of candidates for interview and the rule further requires that a candidate who has worked earlier in the municipality for one session, shall also be called for the interview. This rule in my opinion has no bearing so far as the qualification of a candidate is concerned. As stated earlier, qualification for appointment has been prescribed under Schedule I of the rules and hence reliance of Mr. Dubey on Rule 5 (7) of the Recruitment Rules is absolutely misconceived and submission devoid of any merit and the same is hereby rejected.

To put the record straight, it is relevant here to state that Sri Raizada, appearing on behalf of the Petitioner also assailed the appointment of Respondent No. 7 on the ground that it is a result of malafide and colourable exercise of the power by the Collector as also Respondent No. 4 i. e. the wife of Respondent No. 7, who is the President of the Nagar Panchayat. He further assailed the appointment of Respondent No. 7 on the ground that Respondent No. 7 is not a domicile of the State of Madhya Pradesh, which is an essential requirement for appointment as Shiksha Karmi. These assertions have been denied by the Respondents. As I have held that Respondent No. 7 lacks essential qualification for appointment, I deem it inexpedient to adjudicate the aforesaid questions.

It is further relevant here to state that Respondents have taken a plea in the return that in view of the Rule 12 of the Recruitment Rules, Petitioner has remedy by way of appeal before the Collector and in view of the availability of the statutory remedy, this Writ Petition deserves to be dismissed on this ground alone. It is well settled that existence of an alternative remedy is not a bar to the jurisdiction of this Court for exercise of Its power under Articles 226 and 227 of the Constitution. It is a rule of discretion and not of jurisdiction. However, it is equally well settled that when an efficacious statutory alternative remedy is available, this Court refuses to exercise its discretion. In the facts of the present case, I am of the opinion that the Writ petition can not be thrown out on the ground of existence of a statutory alternative remedy. It is common ground that under Rule 12 of the Recruitment Rules, appeal shall lie before the Collector. Collector has not only dealt with the matter of Respondent No. 7 in regard to his eligibility, but also contended before this Court that he is elgible for appointment. In such circumstance, I am of the opinion that relegating the Petitioner to exercise the appellate power of the Collector under Rule 12 of the Recruitment Rules shall be illusory and futile.

In view of what I have held earlier, Writ Petition deserves to be allowed and is hereby allowed with cost. Appointment of Respondent No. 7 as Shkisha Karmi, Grade I by order dated 28.7.98 (Annexure P-3) is hereby quashed. Respondent No. 3 is further directed to consider the case of appointment of the Petitioner and other eligible candidates, if any, within 6 weeks from the date of receipt / production of a copy of this order. Hearing fee Rs. 1100/- to be paid by Respondent No. 3 to the Petitioner.