SHIV KUMAR SAVITA & ORS vs AMITA VERMA & ORS

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

The petition has been preferred against the inaction on the part of the respondents in not making the appointment of the petitioner on the post of Panchayat Karmi despite the fact that the petitioner was found eligible and was on the top of the merit list with regard to appointment on the aforesaid post.

In brief the facts of the case are that the Gram Panchayat Chhui invited applications for the appointment of Panchayat Karmi which were to be submitted from 02.08.2007 to 09.08.2007 in the office of Gram Panchayat Chhuhi and it is further submitted by the petitioner that as per the resolution issued by the State Government on 12.09.1995 and the Circular dated 13.08.2007 merit list for the appointment of Panchayat Karmi was to be prepared on the basis of minimum educational qualification i.e. on the basis of High School Certificate. Subsequently the list was prepared on the basis of the guidelines issued by the government and in the merit list dated 20.08.2007, the name of the petitioner appeared on the top of the list out of 22 candidates. Despite the petitioner''s name being on the top of the list, Gram Panchayat Chhui by resolution dated 20.08.2007 on the basis of the Circular dated 03.08.2007 prepared the merit list but the name of the respondent No.5 was selected as the successful candidate for the post of Panchayat Karmi instead of the petitioner. The resolution is also filed with the petition as Annexure P/7. When this order was challenged by the petitioner before the Collector, Seoni, Collector Seoni vide its order dated 15.10.2007 held that Gram Panchayat has not followed the Circular of the State Government dated 13.08.2007, which provides that the appointment to the post of Panchayat Karmi should be made on the basis of merit only and thus, the matter was remanded back to the Gram Panchayat, which was directed to pass appropriate order on the basis of merit, but to the utter misfortune of the petitioner, the Gram Panchayat did not follow the orders passed by the Collector and again passed the resolution dated 25.10.2007, whereby respondent No.5 was again appointed as Pachayat Karmi. It is also contended by the petitioner that CEO, Janpad Panchayat, Seoni, on 17.11.2007 also published an advertisement for the post of Panchayat Karmi under Section 86(2) of the Panchayat Act. Being aggrieved of the aforesaid advertisement, respondent No.5 preferred writ petition before this Court bearing W.P.No.16368/2007 and although Stay order was passed initially on 03.12.2007, subsequently on account of non- compliance of the Court order to implead the present petitioner as party, the petition was dismissed. After the dismissal of the petition, the petitioner submitted representations on 16.05.2008 and 05.09.2009 for appointment on the post of Panchayat Karmi at Gram Panchayat, Chhuhi and then again pursuant to the aforesaid advertisement, which was challenged before this Court, a merit list was prepared, wherein the petitioner''s name again appeared on the top of the merit list, but despite his merits he has not been awarded the desired position, hence being aggrieved of the same, present petition has been filed on the ground that in the resolution passed by the Gram Panchayat, merits of the candidates have not been considered and have been given complete go by despite the fact that the Collector vide its order dated 15.10.2007 had already directed to the Gram Panchayat to make appointment on merits but no orders have been passed by the Gram Panchayat as well. In reply to the aforesaid contention by the petitioner, the State has submitted that the post of Gram Panchayat, Chhui was lying vacant but subsequently, during the pendency of the petition, an appointment on the post of Panchayat Karmi has already been made on 31.12.2013 on account of a specific provision, which was made in the year 2011 for service condition and appointment of Panchayat Secretary in the State of M.P. and after following due procedure under the Rules of 2011, one Shri Dashrath Khairwar has been appointed as Panchayat Secretary of Gram Panchayat, Chhuhi and hence, it is prayed that the petition, having become infructuous is liable to be dismissed.

It is also relevant to mention here that during the pendency of the petition, the petitioner had filed an application for impleading one Dashrath and Ramakant as respondents as Dashrath was appointed on the post of Panchayat Secretary of Gram Panchayat Chhui. On 31.12.2013 Dashrath was transferred to Gram Panchayat Khamaria and in his place one Ramakant was transferred. The aforesaid I.A. No.5357/2016 came up for hearing before this Court on 09.05.2016 and this Court dismissed the same with the following observations:-

"After hearing learned counsel for the petitioner it is borne out that their appointment is not from the resolution dated 20.08.2007 and 25.10.2007, but their appointment is on the basis of different procedure adhered to having no nexus with the resolution dated 20.08.2007 and 25.10.2007. It is submitted by learned counsel for the petitioner that, these two persons were appointed in 2013 (31.12.2013). Since the appointment has not been questioned before appropriate forum available to the petitioner under Rules framed under Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, the petitioner cannot be allowed to challenge their appointment directly in a writ petition under Article 226 of the Constitution of India after a period of three years. Even otherwise, these two persons would not be a necessary party in the present petition as these persons are appointed by separate resolutions. It is borne out from the record that the resolution under challenge has already culminated into appointment of respondent No.5, whose appointment later on was set aside by Collector by order dated 15.10.2007. It is also borne out by submissions made by learned counsel for the petitioner that, said order has been affirmed with the dismissal of W.P.No.16368/2007. In view whereof, since the resolution dated 20.08.2007 has been exhausted and resolution dated 25.10.2007 has not been acted upon, it s primafacie doubted as to whether any cause survives in the present petition. When faced with such situation, learned counsel for the petitioner prays for a short adjournment to examine and put forth his submissions."

In view of the aforesaid order passed by this Court, learned counsel for the petitioner has submitted that cause of action still survives as the petitioner has been continuously agitating his cause before various fora including this Court and so far as the appointment of Dashrath has already

been considered and it has been held by this Court that the same was through a separate procedure and has no nexus with the present case. It is, therefore, submitted by the counsel for the petitioner that the post of Panhayat Secretary, after the new rules came into force, is not confined to a particular Gram Panchayat and within the District, the transfer is permissible. Hence it cannot be said that nothing survives in this petition especially when the petitioner ought to have been appointed earlier on the ground of merits.

Heard the learned counsel for the parties and perused the record.

It is not disputed that the petitioner''s name appeared on the top of the merit list (Annexure P/6), which was issued for appointment of Panchayat Karmi of Gram Panchayat Chhui, whereas the name of respondent No.5 Lekhraj Singh Shivvedi appears at Sr.No.9. Thus, there was no reason for Gram Panchayat to bypass the name of petitioner who stood on the top of the merit list and to appoint respondent No.5. The contention raised by the learned counsel for the respondent/State that the resolutions dated 20.08.2007 and 25.10.2007 could be passed for the reason that at that time i.e. in the year 2007, there was no such policy that preference should be given to the merits of a candidate. The aforesaid reasoning as assigned by the leaned counsel for the State runs contrary to the public policy as also the Doctrine of Equality. It is a matter of record that vide Annexure P/8 the Collector, Seoni, while considering the resolution passed by the Gram Panchayat, Chhui for appointment of Lekhraj Singh on the post of Panchayat Karmi has observed that the appointment has not been made on the basis of High School merit and it was directed to the Gram Panchayat to reassess the candidature of incumbents on the basis of their seniority/ merit and if the aforesaid exercise is not completed within a time frame then the CEO, Janpad Panchayat Seoni would be directed to take appropriate steps for appointment of Panchayat Karmi.

In the advertisement dated 17.11.2007 which was issued by the CEO, Janpad Panchayat, Seoni, for appointment of Panchayat Karmi at Gram Panchayat Chhui, it is mentioned that the persons who have already applied need not file new application and operation of this advertisement was stayed by this Court in WP No. 1638/2007 filed by Lekhan Singh Shivvedi wherein the petitioner also filed an application for intervention and this Court vide order dated 06.08.2012 directed Lekhan

Singh Shivvedi to comply with the aforesaid order failing which the petition was to be dismissed without reference to the Court and subsequently, on account of default the petition got dismissed for non-compliance of the aforesaid order. Thus, the matter was kept pending before this Court from 2007 to 2012. It is also relevant to mention that even after the dismissal of the petition in default respondent No.5 did not file any application for restoration and thus, it appears that on the basis of said advertisement, another person was appointed as Panchayat Karmi. From the aforesaid narration of facts, it is clear that there was no error or negligence on the part of the petitioner to pursue the matter and to his utter misfortune, despite being eligible to be appointed as Panchayat Karmi at the first instance, owing to malpractices adopted by the Gram Panchayat, which passed a resolution to appoint respondent No.5, the career of the petitioner could not take off and this petition is also pending before this Court since last five years.

Under these circumstances, the petitioner who had passed the recruitment test with flying colours, and stood on the top of the merit list, cannot be denied the appointment on account of these procedural latches, however, this Court is also aware of the fact that presently, the post of Panchayat Secretary at Gram Panchayat Chhui has already been filled up and as such, in the normal circumstances, without dislodging the said person, the petitioner cannot be appointed on the post of Panchayat Karmi but taking into account the new policy as formulated by the government for the purpose of Panchayat Karmis, the Panchayat Karmis'' appointment is not confined to one particular Gram Panchayat and in fact, the appointment is made in a District.

Under these circumstances, respondents are directed to appoint the petitioner on any vacant post of Panchayat Secretary, available at present, with all consequential benefits attached to such post with effect from the date on which he first became entitled for the same.

With the aforesaid directions, the petition stands disposed of.

C.C. As per rules.