Narendra Parihar vs State Of M.P. Through Department ...
2021 Latest Caselaw 1208 MP

                                 ... 1 ...

           HIGH COURT OF M.P. BENCH AT INDORE
  D.B. HON'BLE JUS. SHRI SUJOY PAUL AND HON'BLE JUS.
               SHRI SHAILENDRA SHUKLA

                        W.A. No.1055 of 2020

                       NARENDRA PARIHAR

                                    V/s.

                     STATE OF M.P. & OTHERS

                              *******
         Shri L.C. Patne, learned counsel for the appellant.
 Shri Shrey Raj Saxena, learned Deputy A.G. for respondents No.1
                             and 2/State.
     Shri Abhishek Soni, learned counsel for respondent No.3.
                              *******
                              ORDER

(Indore dt.1.4.2021) This intra court appeal partially takes exception to the order dated 5.10.2020, passed in W.P. No.3004 of 2019. [2] The appellant / petitioner has submitted his candidature for the post of ADPO. The candidature of the petitioner was rejected on twin grounds namely :-

(i) that, he was tried under Section 409 of IPC and in view of Circular dated 5.6.2003, he was not eligible to occupy a civil post.

(ii) that, the validity of select list stood expired on completion of one year.

[3] Shri L.C. Patne, learned counsel for the appellant submits that the second point aforesaid has been correctly decided by the learned Single Judge in his favour and, therefore, he is not aggrieved by the order impugned to that extent. The appellant is aggrieved to the extent the learned Single Judge opined that the petitioner's eligibility needs to be considered on the post of ADPO by taking guidance from judgment of the Supreme Court in the case of Avtar Singh vs. Union of India, (2016) 8 SCC 471.

[4] The main stand of the learned counsel for the appellant is that ... 2 ...

the appellant's suitability was examined by the department on more than one occasion. The repeated opinions were given that appellant is 'suitable'. The candidature by way of administrative procedure / note sheet even reached to the concerned minister. The learned minister after examining the proceedings opined that the department should proceed for appointment of the petitioner. However, these crucial documents, which show that suitability of appellant was adjudged by the department and he was found to be suitable has not been considered by the learned Single Judge. Although these documents were filed along with the rejoinder. Had those been considered, the fate of the writ petition could have been different and petitioner could have succeeded in getting a writ of mandamus for issuance of appointment order. Thus, impugned order to the extent indicated above is liable to be interfered with.

[5] The prayer is opposed by Shrey Raj Saxena, learned Deputy A.G. for respondents No.1 and 2/State and by Shri Abhishek Soni, learned counsel for respondent No.3.

[6] During the course of hearing, it is not disputed by learned counsel for the respondents that appellant filed a detailed rejoinder along with certain note sheets in which certain noting regarding suitability have been given by the administrative authorities at different levels.

[7] The learned Single Judge, in our opinion was obliged to examine :-

(i) the 'decision making process' adopted by the respondents.

(ii) the decision regarding suitability (if already taken). [8] No fault was found by writ Court in the 'decision making process', but the decision allegedly taken through note sheets, which were filed with the rejoinder have escaped notice of learned Single Judge while passing the impugned order. The said documents are crucial documents to determine whether department has already formed an opinion that appellant is suitable. Hence, those documents are required to be looked into, considered and evaluated by the ... 3 ...

learned Single Judge. Since crucial documents which may have bearing on the outcome of case have escaped notice of writ Court, we deem it proper to partially set aside the impugned order to the extent the petitioner's case was directed to be reconsidered by the department. During the pendency of this writ appeal, the department in obedience of the writ Court's order passed the order dated 3.2.2021. The petitioner may assail this order also by amending his writ petition.

[9] Considering the aforesaid, the order dated 5.10.2020 to the extent petitioner's case was directed to be reconsidered in the light of the Avtar Singh (supra) is set aside. The writ petition may be decided afresh.

[10] The writ appeal is disposed of to the extent indicated hereinabove.

             (SUJOY PAUL)                               (SHAILENDRA SHUKLA)
                JUDGE                                          JUDGE

SS/-
                 Digitally signed by SHAILESH
                 MAHADEV SUKHDEVE
                 Date: 2021.04.01 18:33:42
                 +05'30'