(1.) AN advertisement dated 29-04-2006 was issued by the Janpad Panchayat Shahpura, District Jabalpur calling applications from eligible candidates for appointments on the post of Samvida Shala Shikshak grade-II and Grade-Ill.
(2.) SELECTION process was conducted and after the recruitment was done litigations started cropping up, allegations were made with regard to granting appointment contrary to the statutory rules, making selections beyond the advertised posts and selecting unqualified candidates. Records indicate that various appeals were filed before the Collector and orders passed by the Collector in these appeals are under challenge in connected writ petitions bearing W. P. No. 6241/08 (S), W. P. No. 6433/08 (S), W. P. No. 6465/08 (S) and W. P. No. 6700/08 (S).
(3.) IN the present petition, petitioner Ku. Kanchan Upadhyay has come out with a grievance that she had appeared in the selection process, examination for which was held in the year 2005, her Roll No. was 21210094 and in the said examination she had secured 61. 95 marks out of 130. It was her case that she has obtained 47. 65 % marks in the selection process and in spite thereof she has not been appointed whereas the persons having received less marks have been appointed. In para 5. 5 she has given the instances with regard to appointment of ku. Jyoti Dubey, who has received 30. 47% marks, Ku. Hemlata Sarose, 29. 45% marks, Ku. Priya Nanda Garg, 28. 44% marks, Ku. Laxmi Thakur, 27. 42% marks and Darshika Jain who had received 29. 96 marks. It is her case before this court that even though she has received more marks in the selection process she has not been appointed, whereas persons as indicated hereinabove who have received less marks have been appointed.
(4.) CONSIDERING the aforesaid grievance made by the petitioner notice was issued to the Collector, District Jabalpur on 27-06-2008, to show cause as to why the petitioner should not be appointed, considering the fact that she has received 47. 65% marks and persons have received less marks as indicated herein above have been appointed. In all fairness to the Collector, it is seen that the Collector has filed a detailed reply before this court on 06-08-2008, supported by an affidavit of the Chief Executive Officer, Janpad Panchat Shahpura, Smt. Bharti dixit alongwith photocopies of various documents. A perusal of the reply filed by the respondents indicates that the advertisement in question was issued on 29-04-2006 to fill up the posts of Samvida Shala Shikshak Grade-II and Grade-III in various schools situated under the jurisdiction of various Janpad Panchayats in Jabalpur district. As far as the present petition is concerned the dispute pertains to appointment in Janpad Panchayat Shahpura. In the said Janpad Panchayat 46 posts of Samvida Shala Shikshak Grade-II in the subject of Mathematics , 65 in social Science and 12 in Science, totaling 123 posts were advertised. That apart 160 posts of Samvida Shala Shiksha Grade-III were also advertised.
(5.) IT is further seen from the return filed by the Collector that for the aforesaid posts, 1511 candidates applied with regard to appointment on the post of Samvida shala Shikshak Grade-II and 2090 candidates submitted their applications for appointment on the post of Samvida Shala Shikshak Grade-Ill. The applications were submitted to the respondent no. 5, Chief Executive Officer, Janpad Panchayat shahpura, District Jabalpur. It is stated that the respondent no. 5 prepared the merit list, which was subsequently revised and on the basis of the revised merit list, the final select list was prepared by the respondent no. 5 and he issued appointment letters to the candidates.
(6.) IT is averred- by the Collector in the return that the respondent no. 5 was bound to fill up only 123 posts of Samvida Shala Shikshak Grade-II and 160 posts of Samvida Shala Shikshak Grade-Ill as per advertisement but the respondent no. 3 issued appointment letters to 156 candidates for appointment to the post of samvida Shala Shikshak Grade-II and 218 for the post of Samvida Shala Shikshak grade-III. Accordingly, it is stated by the Collector that the respondent no. 5 appointed 33 Samvida Shala Shikshak Grade-II and 58 Samvida Shakla Shikshak grade-III in excess of the posts advertised. It is averred in the return that the respondent no. 3 Collector issued a letter dated 29-10-2007 to respondent no. 5 shri A. S. Naik and Block Education Officer, Shahpura Shri R. K. Badhan to cancel the excess appointments totaling 91 in all, in pursuance to the same, the respondent no. 5 issued orders dated 30-10-2007 and 15-11-2007 terminating the services of 91 Samvida Shala Shikshak Grade-II and Grade-Ill respectively. Annexure R-2 is copy of the letter in this regard issued by the respondent no. 3.
(7.) IT is further pointed out by the Collector that the 91 terminated Samvida shala Shikshak Grade-II and Grade-Ill filed appeals under the provisions of M. P. Panchayat (Appeals and Revision) Rules, 1993 against the orders of termination dated 30-10-2007 and 15-ll-2007. While hearing the appeals filed, respondent no. 3 found that in all 9 irregularities were committed by the respondent no. 5 and the Block Education Officer in the selection process. The recruitment was done without complying with the rules of reservation. It was also found that the merit list was not prepared as per rules and circulars issued, the three members committee did not examine the unified and category wise merit list, respondent no. 5 did not publish the provisional select list and waiting list category wise , objections were not invited and the appeal committee did not dispose of the objections filed and instead thereof appointment letters were issued as per merit list prepared without following the prescribed procedure. It was also found that the appointment letters were not issued subject wise and respondent no. 5 did not take prior permission of the competent authority for the additional/excess appointments or for issuing the orders of appointment.
(8.) IN paras 11 and 12 of the return, it is so stated by the respondent no. 3 :
"11. The respondents submit that the respondent no. 3 collector examined all these irregularities very carefully on the basis of documents/record available with him and as produced by the appellants /terminated Samvida Shala Shikshak Grade-II and grade-Ill, and the Collector found that in the selection, these aforementioned irregularities committed by the respondent no. 5 and Block Education Officer. It is pertinent to note that respondent no. 5, Chief Executive Officer, Janpad Panchayat Shahpura, respondent no. 4 District Education Officer Jabalpur and District panchayat Jabalpur have not produced any documents relating to the selection except unified merit list, it is further pertinent to note that records of selection are not available in these offices except the unified merit list. Annexure R-3 is the unified merit list.
12. The respondents submit that on the basis of unified merit list the respondent no. 3 Collector decided appeals of the appellants and prepared the provisional merit list and invited objections. The respondent no. 3 Collector Jabalpur specifically directed to submit the objections on or before 17-05-2008 in the office of district Education Officer Jabalpur. Annexure R-4 is the copy of order of respondent no. 3 Collector, Jabalpur. "
As far as petitioner Ku. Kanchan Upadhyay is concerned, it is pointed out that her name appeared in the revised merit list but for the reasons which remained undisclosed her name was not included in the select list and no appointment order was issued to her even though she was eligible for appointment and persons having received less marks were appointed. However, it is pointed out that the petitioner did not file any appeal and has directly approached this court.
(9.) THEREAFTER in paras 14 and 15 of the return, the Collector has so stated :
"14. The respondents submit that Collector found that there are 9 irregularities committed by the respondent no. 5 in the matter of selection of Samvida Shala Shikshak Grade-II and grade-Ill. From the perusal of the order of Collector, it is very clear that selection made by the respondent no. 5 is contrary to the provisions of rule 9, 10, 11 of the M. P. Panchayat Samvida shala Shikshak (Employment and Conditions and Contract) Rules, 2005. It is pertinent to note and as already submitted above that no provisional merit list, provisional and final selection list and proceeding/note sheet of the respondent no. 5 and Block Education officer are available. All these documents have been misplaced and not traceable. It is submitted that looking to the serious irregularities committed by the respondent no. 5 and blockeducation Officer, the Commissioner Jabalpur suspended to the then Chief Executive Officer, Janpad Panchayat Shahpura Shri a. S. Naik and then Block Education Officer R. K. Badhan. Annexure R-6 is the suspension order of respondent no. 5 and annexure R-7 is the copy of suspension order of Shri Badhan block Education Officer. It is further submitted that charge sheet has already been issued to Shri Naik and Shri Badhan which are filed with the orders of suspension i. e. Annexure R-6 and R-7.
15. The respondents submit that under these circumstances it is not possible for the answering respondent to make distinction between the tainted and non tainted candidates. This is a case/ selection in which large scale irregularities have been committed by the respondent no. 5 and Block Education Officer and the entire selection is liable to be nullify. All the appointments made by the respondent no. 5 and Block Education Officer are void -ab-initio as the whole selection is contrary to the recruitment rules. The respondents further submit that no relevant records are available relating to selected candidates who are working as Samvida Shala shikshak Grade-II and III in pursuance to the advertisement dated 29-04-2006. "
Finally, it is pointed out in the return that in view of the facts that have come on record, it is not possible to point out the irregularities committed in the case of each candidate and to pin point the person who is properly appointed and the persons who are not appointed in accordance to the riles. It is said in the return that in the light of irregularities that have come on record, the respondents are going to cancel the whole selection made in pursuance to the advertisement dated 29-04-2006 so far as it relates to Janpad Panchayat Shahpura and for cancellation of the appointment, it is indicated that they are seeking permission of this court to do so.
(10.) FROM the facts that have come on record and on a perusal of the return filed by the Collector, it is crystal clear that in the process of selection conducted in Janpad Panchayat Shahpura in pursuance to the advertisement dated 29-04-2006 various irregularities have come to light, the irregularities have been committed by the then Chief Executive Officer Shri A. S. Naik and Block Education Officer, shahpura Shri R. K. Badhan and for the irregularities committed they have been suspended vide Annexures R-6 and R-7 respectively and charge sheets have also been issued to them. From the facts that have come on record it is also established that petitioner Ku. Kanchan Upadhyay was meritorious , she was eligible to be included in the merit list, this was not done and the persons who had received less marks i. e. even 27. 42% marks were appointed ignoring her candidature. In the light of the large scale irregularities that have come on record and considering the submissions made by the Collector before this court this court has no option but to hold that the entire selection conducted in the matter of recruitment of Samvida Shala Shikshak Grade-II and Grade-Ill in janpad Panchayat, Shahpura stands vitiated and the entire selection is liable to be quashed and the Collector should be directed to proceed in the matter for making fresh appointment in accordance to the rules.
(11.) AT this stage it may be appropriate to take note of the inquiry conducted and the report which is available at page no. 110 of the return filed by the State government. This report is dated 13-02-2008, which is submitted by Shri Om prakash Shrivastava , Chief Executive Officer, Zila Panchayat Jabalpur. It is indicated in the report that most of the records pertaining to the selection have been misplaced and not traceable and serious allegations are made against Shri a. S. Naik, the then Chief Executive Officer Janpad Panchayat Shahpura and block Education Officer, Shahpura Shri R. K. Badhan. Recommendation made is to cancel the entire selection. The Collector has also indicated before this court his intention to cancel the entire selection in the light of the large scale irregularities that have come on record as is evident from the report dated 13-02-2008 submitted by Shri Om Prakash Shrivastava , Chief Executive Officer, Zila Panchayat jabalpur.
(12.) THIS report submitted by Shri Om Prakash Shrivastava, which is available on record indicates that the Inquiry Officer found 11 points which warranted consideration. The 11 irregularities in the selection process and considered by the inquiry Officer are:-
(1) Whether the rules of reservation have been followed. (2) Whether the merit list is prepared properly in accordance to the application received and eligibility of the candidates. (3) Whether the integrated merit list and the category wise merit list is scrutinized by the three members committee in accordance to the policy of the State Government. (4) Whether the competent authority has approved the category wise merit list and thereafter the final merit list and waiting list published and objections were invited to the same. (5) Whether the objections received were placed before appeal committee for consideration, whether they were considered by the appeal committee and the final list published in the local news paper. (6) Whether the orders of appointment have been issued as per merit list and in proper serial number. (7) Whether the appointment letters have been issued subject wise. (8) Whether the appointments have been made as per vacancies existing in the different schools. (9) Whether before issuing the appointment letters, approval of the competent authority has been obtained. (10) In the entire episode who are officials responsible for illegalities if any. (11) Recommendation. Thereafter each of the aforesaid points are taken up for consideration and it is recorded by the Inquiry Officer that there are large scale irregularities , the merit list is not properly prepared, objections were not considered, there is nothing to show that the appeal committee considered the objections and decided them or that the merit list was published in the news paper after considering the objections, issuance of appointment letters is not as per merit list nor is subject irregularities committed in conducting a selection will have to be scrutinized in each case so as to come to a conclusion about future course of action to be adopted in the matter. If the mischief played is so widespread and all- pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, in such cases it will neither be possible nor necessary to issue individual show cause notices to each selectee,. The only way out would be to cancel the whole selection. Motive behind the irregularities committed also has its relevance. "
(Emphasis supplied). Thereafter in the same case the Supreme Court has observed as under:
" As per the report of CBI the whole selection smacks of mala fides and arbitrariness. All norms are said to have violated with impunity at each stage viz. right from the stage of entertaining applications with answer sheets while in the custody of Chairman, in holding typing test, in interview and in the end while preparing the final result. In such circumstances it may not be possible to pick out or choose a few persons in respect of whom alone the selection could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out the right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. Guilt of those who have been selected is not the question under consideration but the question is, could such selection be acted upon in the matter of public employment ? We are therefore of the view that it is not one of those cases where it may have been possible to issue any individual notice of misconduct to each selectee and seek his explanation in regard to the large-scale widespread and all-pervasive illegalities and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there may be a few who may have deserved selection otherwise, but it is difficult to separate the cases of some of the candidates from the rest even if there may be some. The decision in the case of Krishan Yadav applied to the facts of the present case. The Railway Board's decision to cancel the selection cannot be faulted with. The appeal therefore deserves to be allowed."
In the case of Inderpreet Singh Kahlon (Supra) in para-40 it is so held by the Supreme Court:
"40. We at the outset would furthermore notice that having regard to the submissions made before us by Mr. Dwivedi and mr. Rao that the services of the appellants before us were terminated not in terms of the rules but in view of the commission of the illegality in the selection process, involved, we need not consider the applicability of the relevant provisions of the statutes as also the effect of the provisions of Article 311 of the constitution of India. An appointment made in violation of Articles 14 and 16 of the Constitution of India would be void. It would be a nullity. (See. Secy. , State of Karnataka V. Umadevi (3). But before such a finding can be arrived at, the appointing authority must take into consideration the foundational facts. Only when such foundational facts are established, the legal principles can be applied."
(13.) KEEPING in view the aforesaid principles, the facts and circumstances of the present case and the large scale irregularities which are apparent from the records, this court has no other option but to hold that the entire selection conducted for appointment on the post of Samvida Shala Shikshak Grade-II and Grade-Ill in janpad Panchayat Shahpura in pursuance to the advertisement Annexure R-l dated 29-04-2006 stands vitiated. Accordingly, Collector is directed to take action for canceling the entire selection and to conduct selection afresh in accordance to law. While conducting selection process afresh, all such candidates who are eligible and had appeared in the selection process held in pursuance to the advertisement Annexure R-l dated 29-04-2006 shall be permitted to participate and no new candidates who had not applied will be permitted to participate in the selection process. It is clarified that the selection being conducted now shall be limited only to such of the candidates who had applied, were found eligible and had participated in the previous selection.
(14.) FRESH recruitment process Respondents directed to conduct in pursuance to the aforesaid order shall be limited to on such candidates who had applied and participated in the previous selection process and the same be completed within a period of 3 months from the date of receipt of certified copy of this order.
(15.) ACCORDINGLY this petition stands allowed with the aforesaid without any order so as to cost. Petition allowed.
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