Shri S.N. Singh & another vs Arvind Kumar Gupta

The parties have fought a long drawn battle in the corridors of the Court. Their rival claims are on the post of Panchayat Karmi in Gram Panchayat Bisnakhedi, District Damoh. At present, the petitioner is aggrieved by order dated 10.04.2017, whereby the respondent No.1 has set aside the order of learned Additional Commissioner, Sagar dated

07.01.2014.

Briefly stated, petitioner, respondent No.6 and other candidates submitted their candidatures for the post of Panchayat Karmi in the aforesaid Gram Panchayat. Admittedly, the petitioner''s marks in High School Examination are 50.2% whereas the respondent No.6 has secured 54.8% marks. The petitioner succeeded before the learned Collector as per the order dated 29.12.2009 (Annexure-P/10), wherein the learned Collector opined that as per the Panchayat Karmi Yojana dated 12.09.1995, the Panchayat can add eligibility conditions at the time of appointment of Panchayat Karmi. He based his order on Clause 3.3 of the policy dated 12.09.1995. After considering the said policy, he opined that although the petitioner has secured less marks than the respondent No.6 in the High School Examination, he has certain other higher qualifications in which his marks are more than the marks obtained by respondent No.6. In addition, he opined that as per the Resolution of Gram Panchayat, the respondent No.6 did not file affidavit and other documents and, therefore, his candidature was rejected. This order of learned Collector was unsuccessfully challenged by the

respondent No.6 before the Additional Commissioner, Sagar Division in Appeal No.213/A-09/2009-2010. Learned Additional Commissioner affirmed the findings given by the Additional Collector in his order dated 07.01.2014. Aggrieved, the respondent No.6 filed a revision before the State Government which was decided by the impugned order dated 10.04.2017. The learned counsel for the petitioner submits that the competent authority has erred in passing this order on the basis of marks obtained by the candidates in the High School Examination. Shri Prakash Upadhyay has raised following points: (i) As per the Panchayat Karmi Yojana dated 12.09.1995 and the circular which was in vouge at the time of selection i.e. 27.01.2006 (Annexure-P/1), it was open to the Panchayat to take into account the eligibility, seniority and superiority of the candidates;

(ii) The subsequent policy dated 13.08.2007 was issued after issuance of the advertisement dated 03.08.2007. Thus, the rules of game cannot be changed after initiation of recruitment process.

Reliance is place on 2015 (8) SCC 484 (Prakash Chand Meena and others Vs. State of Rajasthan and others).

Shri Upadhyay, learned counsel for the petitioner further contends that the petitioner succeeded before the Collector on other grounds also and order of Collector was not confined to the merits of the candidates on the basis of result of High School Examination. The State Government has not taken pains to deal with the other reasons given by the learned Collector and affirmed by the Additional Commissioner. On this basis alone, the impugned order is liable to be interfered with.

During the course of argument, Shri Upadhyay relied on (1997) 4SLR 562 (Hari Baboo Sharma and others Vs. Gram Panchayat, Sankara and others) to contend that the word "merit" is very wide and it cannot be confined to percentage of marks obtained by candidates in the High School Examination. He also placed reliance on 2012 (1) MPLJ 45 (Kalpnath Mishra Vs. State of M.P. and others) to contend that the subsequent circular dated 13.08.2007 cannot be made

applicable in the present case because the process had begun much before the issuance of the said circular.

Per contra, Shri B.D. Singh, learned Govt. Advocate supported the impugned order and submits that comparative merit of the candidates is to be adjudged on the basis of the essential minimum qualification and not on the basis of any higher qualification.

Shri Sourabh Singh, learned counsel for the respondent No.6 submits that the circular dated 13.08.2007 refers about the earlier circular dated 27.01.2006. Thus, this circular dated 13.08.2007 is in continuity and in furtherance of earlier circular dated 27.01.2006. Hence, this circular is very much applicable. By placing heavy reliance on 2011 (2) MPLJ 324 (Ashish Singh Vs. State of M.P. and others), Shri Sourabh Singh submits that this Court has taken into account the Panchayat Karmi Yojana and opined that the merit in relation to basic essential qualification is to be seen and no higher qualification will be a feather in the cap of the petitioner. It is further submitted that under the garb of Clause 3.3 of the policy of 1995, no grey area can be created and no flimsy or arbitrary

consideration can be made. In support of his contention, he placed reliance on 2016 (4) MPLJ 563 (Om Prakash Singh Rathore Vs. State of M.P. and others). Lastly, Shri Sourabh Singh contends that the petitioner is real nephew of the then Sarpanch, therefore, he was being favoured by the Gram Panchayat.

Shri Prakash Upadhyay in his rejoinder submission contends that Section 69 (Explanation) provides the definition of "relatives". "Nephew" does not fall within the ambit of "relative" as per the said definition. Thus, the allegations of favouritism are without any basis.

No other point is pressed by leaned counsel for the parties. As to Point No. (i) & (ii)

The petitioner''s stand is that at the time of present recruitment the Panchayat Karmi Yojna dated 12-09-1995 and Circular dated 27-01-2006 (Annexure P/1) were applicable and subsequent Circular dated 13-08-2007 cannot be pressed into service. In my view, the preposition laid down by Supreme Court in Prakash Chand Meena (supra) is well known that

rules of game cannot be changed after beginning of the game. In other words, after commencement of recruitment process, the method of selection etc. cannot be changed. However, this preposition is of no help to the petitioner because the basic policy dated 12-09-1995 and Clause 3.3 mentioned in it were considered by this Court in the case of Ashish Singh (supra). Pausing here for a moment, it is profitable to remember that learned Collector in Para 10 of his order dated 29-12-2009 (Annexure P/10) opined that as per Clause 3.3 of Policy dated 12-09-1995, the Gram Panchayat can add three desirable conditions. On the strength of Clause 3.3, the action of Gram Panchayat was affirmed by the Collector and this order got a stamp of approval from Additional Commissioner on 07-01- 2014 (Annexure P/11). This Court in Ashish Singh (supra) considered the very same policy and Clause 3.3 and opined as under:- "11. The second question would be with regard to determination of merit. The minimum educational qualification prescribed is Class 10th pass under the 10+2 High School Examination Pattern. Admittedly, the petitioner is 10th Class pass and is more meritorious than respondent No.6. Merely because respondent No.6 is more qualified and is 12th Class pass that cannot be a ground for ignoring the merit

of the petitioner, who is qualified for appointment and giving preference to respondent No.6 only because he is 12th Class pass, the decision taken by the Gram Panchayat by referring to Clause 3.3 of the policy dated 12.9.95 is nothing but an arbitrary decision. The provisions of Clause 3.3 contemplates that apart from the aforesaid criteria laid down, the Gram Panchayat can lay down further criteria in the advertisement. The provisions of Clause 3.3 does not mean that the Gram Panchayat can lay down such condition which is arbitrary in nature. The conditions to be laid down by the Gram Panchayat under Clause 3.3 has to be rational, reasonable and should be in conformity with the reasons for which it is laid down. The condition now laid down for giving preference to respondent No.6 is nothing but an arbitrary condition, as preference is given to him only because he has some extra qualification than the one prescribed, but if the minimum qualification is taken into consideration the petitioner is more meritorious than respondent No.6.

In that view of the matter, finding a more meritorious candidate to have been ignored for appointment and a less meritorious candidate appointed in his place, the action of the respondents is found to be unsustainable.

Accordingly, this petition is allowed. Orderdated 28.2.2009 passed by the Collector, and the order-dated 23.3.2009 passed by the Commissioner are quashed and it is directed that petitioner, who is more meritorious than respondent No.6 be appointed to the post in question." (Emphasis supplied)

I am bound by the order of this Court in Ashish Singh (supra). In the case of Ashish Singh (supra), the petitioner secured more marks (71%) in Clause 10th

Examination whereas respondent No.6 therein obtained 64.2% marks in the said examination. The preference was given to respondent No.6 on the ground that he had acquired higher qualification (Class 12th). This Court disapproved such selection by holding that for determining the merit, the minimum educational qualification (Class 10th) should be taken into account. The inter se merits of the candidates should be judged on the basis of merit of Class 10th and not on the basis of any other merits/consideration. The same view is recently taken by Gwalior Bench in the case of Omprakash Singh Rathor (supra). The relevant paras read as under:- "10. It may not be out of place to mention here that respondents have further taken into account additional qualification of respondent no. 4 as a reason for giving priority to her over the petitioner. 10.1. The law in regard to the recruiting two competing candidates standing at par is very clear. If a candidate secures more marks in the minimum additional qualification prescribed for the post concerned then some other candidate who secure lesser marks in the said qualifying examination in the absence of any Rule to the contrary, cannot empower recruiting agency to chose the less meritorious candidate. The question of weightage to higher qualification beyond the minimum prescribed under the Rules arises only when two or more competing candidates secure equal marks in the qualifying examination and not otherwise."

In view of aforesaid, Point No.(i) is decided against the petitioner. So far as the Point No.(ii) is concerned, in view of findings given hereinabove, this point is of no help to the petitioner.

Shri Upadhyay placed reliance on the judgment of Hari Baboo Sharma (supra). In the said judgment, the Clause 3.3 was not dealt with in a specific whereas in the case of Ashish Singh (supra), this Court considered the relevant policy dated 12-09-1995 and Clause 3.3 of said policy. This Clause 3.3 became the basic reason for passing the order by Collector on 29-12-2009. In view of aforesaid analysis, the judgment of Hari Baboo Sharma (supra) is of no help to the petitioner.

So far as the last ground of Shri Upadhyay is concerned wherein he has stated that the respondent No.6 did not file the relevant document alongwith his candidature, suffice it to say that Collector himself treated it to be a technical error. A careful reading of the order of Collector shows that basic reason for allowing the appeal was that the present petitioner is more meritorious than the private respondent herein. The Collector did not allow the application by specifically holding

that the respondent No.6 was ineligible or his candidature was rightly rejected by the Gram Panchayat. Hence, this ground pales into insignificance.

In view of binding judgments in the case of Ashish Singh and Omprakash Singh Rathor (supra), I am constrained to hold that the State Government has not committed any error in passing the order dated 10-04-2017 (Annexure P/17).

Resultantly, the petition is dismissed. No cost.