Sunil Kumar Golhani vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—By this petition, the petitioner seeks a direction to the respondent No. 2, Municipal Corporation, Raipur, to issue letter of appointment in favour of the petitioner on the post of Ayurvedic Chikitshak Adhikari and further prays for cancellation of the appointment order passed in respect of the respondent No. 3. The facts, in nutshell, as projected by the petitioner, are that in the year 1991 the Municipal Corporation, Raipur, (for short "the Corporation") invited applications from the eligible candidates for the post of Ayurvedic Chikitshak Adhikari. The petitioner along with other candidates applied for the said post and appeared in the interview. In the interview, the petitioner succeeded and accordingly, his name found place at serial No. 2 in the order dated 17-11-1994 (Annexure P/1) whereas the name of the respondent No. 3 found place at serial No. 4.

According to the petitioner, all the persons have been absorbed in the services, except the petitioner for which the petitioner has made several representations before the respondent authorities, but no action has been taken. In the meantime, the respondent No. 3 was appointed as Ayurvedic Chikitshak Adhikari in spite of the fact that the name of the respondent No. 3 was below the name of the petitioner in the order dated 17-11-1994 (Annexure P/1).

Thereafter, the petitioner preferred a writ petition being W.P. No. 2822/1995 (Sunil Kumar Golhani v. State of M.P. and others) before the High Court of Madhya Pradesh. The High Court of Madhya Pradesh by order dated 30-8-1995 (Annexure P/3) stayed the appointment of the respondent No. 3 herein (respondent No. 5 therein). Subsequently, the said writ petition was disposed of by the Court on 11-3-1997 (Annexure P/4) with the following observations:-

In view of the aforesaid stand of respondent No. 1, I am not inclined to go into the merits of the case at this stage. The State Government shall take final decision in the matter within 3 months, while doing so it will be considered that the case of the petitioner as also other eligible candidates including respondent No. 5, till the final decision is not taken by the State Government/respondents 2 to 4 shall not make appointment of respondent No. 5.

Thereafter, the respondent authorities decided not to appoint the respondent No. 3. In the meantime, the Corporation took a decision to appoint Ayurvedic Chikitshak Adhikari in accordance with law, but no appointment has been made on the said post. However, all of a sudden, the State Government without following any rules made for any appointment directed the Corporation to forward the name of the respondent No. 3 for his appointment on the post of Ayurvedic Chikitshak Adhikari. On the basis of the direction of the State Government, Mayor-in-Council of the Corporation decided to appoint the respondent No. 3 as Ayurvedic Chikitshak Adhikari.

After resolution of the Mayor-in-Council, the Commissioner of the Corporation, wrote a letter dated 11-6-2004 to the State Government stating that since no post is existing or created for Ayurvedic Chikitshak Adhikari, the appointment order cannot be issued in favour of the respondent No. 3. Subsequently, by order (Annexure P/19), the Personal Assistant to the Minister, Government of Chhattisgarh wrote a letter to the Commissioner of the Corporation, for appointment of the respondent No. 3 on the post of Ayurvedic Chikitshak Adhikari. By order dated 13-7-2004 (Annexure P/20), Under Secretary to the Government. of Chhattisgarh, Environment and Urban Development Department, directed the Commissioner of the Corporation to appoint the respondent No. 3 on the post of Ayurvedic Chikitshak Adhikari. Thus, this petition.

Shri Bhaduri, learned counsel appearing for the petitioner, would submit that direction to pass appointment order in favour of the respondent No. 3, is de hors the provisions of Section 58 (1) (i) (ii) of the Chhattisgarh Municipal Corporation Act, 1956 (for short "the Act, 1956") and the provisions of Rule 8 of the Chhattisgarh Municipal Corporations (Appointment and Conditions of Service of Officers and Servants) Rules, 2000 (For short "the Rules, 2000"). The appointment order has been issued in favour of the respondent No. 3 in an illegal and arbitrary manner. The name of the petitioner found place in the order dated 17-11-1994 (Annexure P/1) at serial No. 2 whereas the name of the respondent No. 3 found place at serial No. 4, The appointment has been made in favour of the respondent No. 3 without inviting any applications from the eligible candidates and without holding a proper selection process. The authorities of the Corporation deprived all the eligible candidates including the petitioner to get a fair chance to compete in the selection process. The impugned action of the respondent authorities is in violation of the provisions of Article 16 of the Constitution of India.

Shri Bhaduri, would further submit that the act of the State Government giving a direction to the Corporation to pass resolution with regard to appointment of the respondent No. 3 was completely illegal, as the State Government was not within its power to direct appointment of a particular person de hors the rules of appointment. The Corporation being an autonomous body ought to have refused to pass a resolution in favour of a particular person for appointment ignoring the other eligible candidates. Shri Bhaduri would also submit that since the petitioner was over and above in the original selection list, the Corporation ought to have considered the name of the petitioner for his appointment on the post of Ayurvedic Chikitshak Adhikari.

On the other hand, Shri Thakur, learned Dy. Adv. General appearing for the State, would submit that the appointment of the respondent No. 3 was considered on the post of Ayurvedic Chikitshak Adhikari, on the basis of resolution dated 18-5-2004 passed by the Mayor-in-Council of the Corporation. Therefore, the appointment of the respondent No. 3 is legal, just & proper.

Shri H.B. Agrawal, learned senior counsel appearing for the Corporation with Shri Pankaj Agrawal, learned counsel, would submit that after creation of the post of Ayurvedic Chikitshak Adhikari, the State Government directed the Corporation to appoint the respondent No. 3. On the date of issuance of appointment order in favour of the respondent No. 3, the age of the petitioner was barred, therefore, his candidature was not considered. The action of the respondent authorities is neither illegal nor arbitrary. Shri Agrawal would further submit that on the date of issuance of appointment order the respondent No. 3 was the only person having the requisite qualifications. Thus, the petitioner is not entitled to any relief.

Shri Sahu, learned counsel appearing for the respondent No. 3, while adopting the arguments advanced by the learned counsel appearing for the State and the respondent No. 2, would submit that after following the due process of law, the respondent authorities appointed the respondent No. 3 on the post of Ayurvedic Chikitshak Adhikari. Thus, the same does not warrant any interference of this Court and the petition may be dismissed.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

Indisputably, a list of four persons namely; Ku. Tejwanti Singh, Sunil Kumar Golhani, Pramod Kumar Baghel & Narendra Mishra, after selection was recommended by the Commissioner of the Corporation for appointment on the post of Ayurvedic Chikitshak Adhikari on 17-11-1994 (Annexure-P/1). In the said order, the date of birth of the petitioner was shown as 24-8-1960 and the date of birth of the respondent No. 3 was shown as 15-11-1962. The permanent committee of the Corporation resolved to recommend the name of the respondent No. 3 for appointment on the post of Ayurvedic Chikitshak Adhikari for a period of six months in anticipation of approval from the State Government vide Annexure-P/2 dated 15-7-1995.

Being aggrieved, the petitioner preferred a petition before the High Court of Madhya Pradesh at Jabalpur, being W.P. No. 2822 of 1995. By order dated 30-8-1995 (Annexure-P/3), the High Court of Madhya Pradesh granted stay on the appointment of the respondent No. 3 herein (respondent No. 5 therein). Thereafter, on 11-3-1997 (Annexure-P/4) the said writ petition was disposed of by the High Court, directing the State Government to consider the case of the petitioner as also other eligible candidates including the respondent No. 3 (respondent No. 5 therein) within a period of three months. It was further directed not to appoint the respondent No. 5 therein (respondent No. 3 herein), till the final decision.

On 28-12-1995 (Annexure-P/5), the Local Administration Department of the then State of Madhya Pradesh directed the Corporation not to appoint the respondent No. 3 for six months in anticipation of approval, as the selection committee has recommended four names and the respondent No. 3 was at S. No. 4. On 20-8-1997 (Annexure-P/8), the Local Administration Department of the then State of M.P. directed the Corporation that the age of the candidate should be taken as on the date of 1st January of the next year from 3-2-1992 and the time spent in the selection process may not be added to the age of a candidate.

On 10-4-1998, the permanent committee of the Corporation decided not to appoint any person on the post of Ayurvedic Chikitshak Adhikari, as the matter of appointment was pending consideration for the last 7 years and, as such, the resolution dated 15-7-1995, whereunder the committee resolved to recommend the name of the respondent No. 3 for appointment on the post of Ayurvedic Chikitshak Adhikari, was cancelled. Accordingly, a communication was sent to the Principal Secretary, Department of Local Administration, the then State of M.P. on 17-4-1998 (Annexure-P/12). In the subsequent letter dated 14-5-1999 (Annexure-P/13), the Commissioner of the Corporation informed the Principal Secretary to the Government that in future if a decision is taken to appoint Ayurvedic Chikitshak Adhikari, the same would be done only on obtaining prior approval from the State Government.

The fact of recommendation of the candidature of the respondent No. 3 for appointment by resolution dated 15-7-1995, thereafter, cancellation of the said resolution on 10-4-1998 was again communicated to the Secretary to the Department of Local Administration & Development on 21-3-2003 (Annexure-P/14). On 25-1-2002 (Annexure-P/15) the Commissioner of the Corporation informed to the Secretary, Department of Local Administration & Development that no action can be taken on the application of the respondent No. 3, as the recommendation for his appointment on the post of Ayurvedic Chikitshak Adhikari has already been cancelled.

Surprisingly on 25-2-2004 (Annexure-P/16) the Special Secretary to the Government of Chhattisgarh, Department of Environment and Urban Development directed the Commissioner of the Corporation to pass fresh resolution in the light of resolution dated 15-7-1995 for appointment of the respondent No. 3 on the post of Ayurvedic Chikitshak Adhikari. Accordingly, on the instruction of the Special Secretary, a resolution was passed on 18-5-2004 (Annexure-P/17), by the Mayor-in-Council of the Corporation. The resolution reads as under:

The resolution clearly indicates that the same was passed in view of the memo dated 25-2-2004 of the Department of Environment and Urban Development, Government of Chhattisgarh.

Personal Assistant to the Minister, Finance, Planning, Commercial Tax, Statistics and Urban Administration Department, wrote a letter (Annexure-P/19) to the Commissioner of the Corporation that the case in respect of the appointment of the respondent No. 3 may be approved and order may be passed immediately. The State Government accordingly by order dated 13-7-2004 (Annexure-P/20) approved the appointment of the respondent No. 3 on the post of Department of Environment and Urban Development. Thus, this petition.

On 26-4-2006, this Court after hearing the learned counsel appearing for the petitioner and the learned counsel appearing for the State, ordered that the appointment of the respondent No. 3 would be subject to the decision of this writ petition.

Section 58 of the Act, 1956 provides for appointment and conditions of service of Corporation Officers and servants. In exercise of the powers conferred by Section 433 read with sub-section (1) of Section 58 of the Act, 1956 the rules namely : Chhattisgarh Municipal Corporations (Appointment and Conditions of Service of Officers and Servants) Rules, 2000 were framed.

Rule 4 of the Rules, 2000 provides for methods of recruitment. Health Officer is to be appointed under Schedule I by 100% direct recruitment. Rule 8 of the Rules, 2000 provides for procedure for direct recruitment to the effect that the Commissioner shall intimate the local employment exchange the pay scale, qualifications, eligibility and other conditions prescribed for the post and call a list of eligible candidates. An advertisement in at least two local newspapers shall also be published inviting applications in the prescribed form within a prescribed time limit. Thereafter, there is a provision for scrutiny of application, preparation of list of eligible candidates. There may be, thereafter, competitive examination or oral interview or both, as decided by the appointing authority.

Rule 8 of the Rules, 2000 reads as under:

Procedure for direct recruitment.-(1) When a post meant for direct recruitment fall vacant and the appointing authority is of the opinion that the vacant post is to be filled in the interest of the Corporation, then the Commissioner shall intimate the local Employment Exchange the pay scale, qualifications, eligibility and other conditions prescribed for the post and call a list of eligible candidates. An advertisement in at least two local Newspapers shall also be published inviting applications in the prescribed form within a prescribed time limit.

(2) On receiving the applications the Commissioner shall scrutinize the applications and prepare a list of eligible candidates including the list of candidates received from the Employment Exchange.

(3) The appointing authority shall decide whether the selection of candidates shall be made by competitive examination or by oral interview or by both.

(4) The selection of candidates shall be made by the Committee as specified in Schedule IV.

(5) The Selection Committee shall prepare a select list of candidates on the basis of the marks obtained in the competitive examination or oral interview or both, as the case may be and such list shall contain twice the number of vacant posts. This select list shall be submitted to the appointing authority.

(6) After approval of the select list by the appointing authority, it shall be published and such list shall be valid for a period of one year from the date of its publication for appointment in the Corporation.

(7) The appointing authority shall appoint candidates in the order in which their names appear in the select list.

(8) The inclusion of a candidates name in the list, confers no right to appointment unless the appointing authority is satisfied after such inquiry, as it may consider necessary, that the candidate is suitable in all respect for appointment to the service.

In the case on hand, the appointment of the respondent No. 3 pursuant to the resolution dated 18-5-2004 (Annexure-P/17), which clearly indicates that the resolution was passed on the basis of letter dated 25-2-2004 (Annexure-P/16), was de hors the provisions of Section 58 (1) of the Act, 1956 and the Rules framed thereunder.

If the basis of appointment of respondent No. 3 was the memo dated 17-11-1994 (Annexure-P/1) four persons on merit were recommended. The petitioner was placed at S.No. 2 and the respondent No. 3 was placed at S.No. 4. At that point of time the petitioner was not barred by age, as pleaded by the learned counsel appearing for the respondents. Thus, recommendation of the name of the respondent No. 3 for appointment on the post of Ayurvedic Chikitshak Adhikari was vitiated.

The High Court of Madhya Pradesh, in Sunt Kumar Golhani (supra), has noticed the discrepancies in recommending the name of the respondent No. 3 (respondent No. 5 therein) and on the basis of statement made by the learned Deputy Advocate General appearing for the State directed to consider the case of all the eligible candidates and pass appropriate order within three months and no appointment of the respondent No. 3 would be made, till final decision. That was never done. Ultimately, the recommendation, by resolution dated 15-7-1995, made by the Corporation was cancelled subsequently.

Looking from all angles, the appointment of the respondent No. 3 is arbitrary, illegal and contrary to the provisions of law.

For the reasons mentioned hereinabove, the appointment of the respondent No. 3 is quashed. The appointment of the respondent No. 3 is contrary to the order passed by the High Court of Madhya Pradesh in Sunil Kumar Golhani (supra) and on this ground also the order of appointment of the respondent No. 3 is vitiated. Without complying with the order of the High Court of Madhya Pradesh, no appointment of the respondent No. 3 should have been made on the basis of resolution dated 15-7-1995, which is the basis of subsequent resolution dated 18-7-2004 (Annexure-P/17). Further, four weeks time is granted to the respondent authorities comply with the order dated 11-3-1997 (Annexure-P/4) passed by the High Court of Madhay Pradesh in Sunil Kumar Golhani (supra).

In the result, the writ petition is allowed to the above extent. There shall be no order as to costs.