Gopal Singh Gurjar v. State Of M.P & Others

It is submitted by learned counsel for the appellant that the controversy involved in this Writ Appeal has already been covered by decision of Hon'ble Supreme Court in the case of State of Bihar v. Mithilesh Kumar reported in (2010) 13 SCC 467. Hence, with the consent of the parties, the matter is finally heard and is being disposed of finally.

This appeal has been field against the order dt.14.12.2012 passed in W.P No. 8620/2011.

Gram Panchayat, Bara issued a notification dt.24.7.2007 inviting applications for appointment to the post of Panchayat Karmi. Total 11 candidates applied in pursuance to the notification. Gram Panchayat in its meeting held on 13.8.2007 decided to appoint Mr. Virendra Singh Gurjar as Panchayat Karmi. He was at S. No. 3 in the merit list. The aforesaid appointment was challenged by the petitioner and one Ku. Sadhna Goswami in appeal before the SDO. The authority allowed the appeal vide order dt.1.12.2007 Against the aforesaid order, a revision was filed by Mr. Virendra Gurjar and the Additional Commissioner set aside the order of the SDO. Then a Writ Petition was filed before this court, which was registered as W.P No. 1539/2008(S). This court allowed the petition vide order dt.13.5.2008 and issued following directions-

“Subsequently, petition of the petitioner is disposed of with the following directions:-

1) That the order of appointment of respondent No. 4 as Panchayat Karmi and the resolution of the Gram Panchayat, Annexure P/7 dated 13.08.2007, order of S.D.O, Annexure P/2 dated 01.12.2007 and order of Additional Commissioner, Annexure P/1 dated 24.03.2008 are hereby quashed.

2) The matter is remanded back to the Panchayat to call afresh meeting for appointment of the candidates who applied for the post in pursuance to the advertisement and consider their candidature and the Division Bench of this Court in W.A No. 208/2006 after considering merits of the candidates and complete the process of appointment of Panchayat Karmi accordingly.

Let necessary orders be passed in this regard within a period of six weeks from the date of receipt of certified copy of this order.

No order as to costs.”

Thereafter, the Gram Panchayat appointed Mr. Virendra Singh Gurjar on the post of Panchayat Karmi. Again it was challenged by Ku. Sadhna Goswami in W.P No. 3101/2008(S). This court vide order dt.29.11.2010 allowed the aforesaid Writ Petition and issued following directions:-

“Heard.

For the reasons stated in detail in the order passed today i.e 29.11.2010 in W.P No. 3117/2008 (Sadhna v. State Of M.P.), the petition of the petitioner is allowed. The impugned resolution Annexure-P/1, dated 4.7.2008 and the consequential proceedings are hereby quashed. The Gram Panchayat is directed to consider the candidature of all the candidates including the petitioner on the basis of merits and pass appropriate resolution within a period of six weeks from the date of receipt of copy of the order.

With the aforesaid direction, this petition is disposed of. No order as to costs.”

Thereafter, the Gram Panchayat appointed Ku. Sadhna Goswami as Panchayat Karmi. The appellant was placed at S. No. 2 in the merit list. Ku. Sadhna Goswami refused to join the service, hence, the appellant was appointed as Panchayat Karmi.

After appointment of the appellant as Panchayat Karmi, Chief Executive Officer Janpad Panchayat sent a proposal to the Collector for conferral of power of Panchayat Secretary to the appellant. The proposal was rejected on the ground that because the new rules came into force w.e.f 29.3.2011, hence, the appellant could not be conferred the power of Panchayat Secretary. That order was challenged by the appellant before the Writ Court. The Writ Court rejected the writ petition on the ground that in accordance with the provisions of Rule 11 of Rules of 2011, the orders and instructions issued in this regard were repealed, hence, the Sarpanch had no power and authority to issue appointment order of the appellant and the action of Gram Panchayat is contrary to law.

Learned counsel for the appellant has contended that the order passed by the learned Writ Court is contrary to the provisions of law laid down by the Hon'ble Supreme Court in State of Bihar v. Mithilesh Kumar reported in (2010) 13 SCC 467.

From the facts stated above in the order, it is clear that the process for appointment to the post of Panchayat Karmi was initiated by the Gram Panchayat in pursuance to the notification dt.24.7.2007 Thereafter, one Virendra Singh Gurjar was appointed as Panchayat Karmi. His appointment was set aside ultimately by the High Court and the directions were issued to the Gram Panchayat to consider the merits of the candidates and complete the process of appointment of Panchayat Karmi. Thereafter, again another Writ Petition was filed and in this Writ Petition the court has observed that the Panchayat Karmi be appointed on the basis of merits of the candidates. Thereafter, the Panchayat issued appointment order of the petitioner. In the meanwhile, the rules named as Madhya Pradesh Panchayat Seva (Gram Panchayat Sacchiv Bharti Aur Seva Ki Sharte) Niyam, 2011 (hereinafter referred as Rules of 2011) came into force. It is mentioned in the rules that these rules shall come into force from the date of gazette notification. The notification was published in the gazette dated 29.3.2011 There is repealing and saving clause in the rules, which is as under

“11. Repeal and Saving.-The guidelines issued for the implementation of the Panchayat Karmi Yojna, 1995 and orders and instructions issued in this regard are hereby repealed:

Provided that any action duly taken or orders issued in accordance with the aforesaid Panchayat Karmi Yojna, 1995.guidelines so issued shall be deemed to have been taken or issued under the corresponding provisions of these rules.”

The provision clearly stipulates that any action duly taken or orders issued in accordance with the aforesaid Panchayat Karmi Yojna 1995.guidelines so issued shall be deemed to have been taken or issued under the corresponding provisions of these rules.

Hon'ble Supreme Court in the case of Mithilesh Kumar (supra) has considered the effect of amendment in the rules or norms of appointment after commencement of the recruitment process and held as under:-

“18. We have carefully considered the submissions made on behalf of the parties and we are not impressed with the stand taken by the petitioner State of Bihar, that the Bihar Public Service Commission ought not to have recommended the name of the respondent for appointment after the Assistant Director, Social Welfare had requested the Commission not to recommend any further names in view of the decision taken by the State to have disabled persons trained through professionally established NGOs/institutions in place of Instructors/Assistant Instructors for which advertisement had already been issued by the Commission.

19. Both the learned Single Judge as also the Division Bench rightly held that the change in the norms of recruitment could be applied prospectively and could not affect those who had been selected for being recommended for appointment after following the norms as were in place at the time when the selection process was commenced. The respondent had been selected for recommendation to be appointed as Assistant Instructor in accordance with the existing norms. Before he could be appointed or even considered for appointment, the norms of recruitment were altered to the prejudice of the respondent. The question is whether those altered norms will apply to the respondent.

20. The decisions which have been cited on behalf of the respondent have clearly explained the law with regard to the applicability of the rules which are amended and/or altered during the selection process. They all say in one voice that the norms or rules as existing on the date when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect.”

In para 20 of the aforesaid judgment, Hon'ble Supreme Court has clearly held that norms or rules as existing on the date when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless the same were given retrospective effect. In the present case Rules of 2011 have not been made effective with retrospective date. In such circumstances, in our opinion, the process of selection in the case of the appellant, which began in 2007, would continue to govern under the provisions of old rules or instructions in accordance with the judgment and principle of law laid down by the Hon'ble Supreme Court.

Consequently, the appeal is allowed. The impugned order passed by the learned Single Judge and also the order passed by the respondent No. 4 are hereby quashed. The respondent No. 4 is directed to pass the order in regard to conferral of power of Panchayat Secretary on the appellant in accordance with the provisions of Section 69(1) of the M.P Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993.

No order as to costs.