Madhya Pradesh High Court
Rekha Sharma vs The State Of Madhya Pradesh on 28 July, 2021
Author: Prakash Shrivastava
1
W.A. No.651/2021
HIGH COURT OF MADHYA PRADESH
W.A. No.651/2021
(Smt. Rekha Sharma Vs. State of M.P. and others)
Jabalpur, Date 28.07.2021
Heard through Video Conferencing.
Shri Sanjay Verma, learned counsel for the appellant.
Shri Brahmadatt Singh, learned Govt. Advocate for the
State.
Shri Abhishek Arjaria, learned counsel for respondent No.5.
The appellant has filed this writ appeal aggieved with the
order of learned Single Judge dated 01.07.2021 whereby the
Writ Petition No.13385/2008 has been allowed and the
impugned orders dated 27.03.2008 and 30.05.2008 have been
set aside.
2. Facts
in nutshell are that the appellant as also the respondent
No.5 along with the other candidates had made applications for the post
of Anganwadi Worker in pursuance to advertisement dated 31.07.2007.
The official respondents had prepared the merit list on 19.08.2007. As
per the merit list, the name of the respondent No.5 was placed at Sr.
No.1 as she had secured 40 marks and the appellant was placed at Sr.
No.2 having secured 39 marks. The respondent No.5 was appointed as
Anganwadi Worker vide order dated 24.09.2007. This appointment was
challenged by the appellant by filing an appeal before the Collector and
the Collector took the view that in view of the subsequent circular dated
13.09.2007, the appellant was entitled to get six marks under the head
of experience. Accordingly, the Collector had allowed the appeal by
order dated 27.03.2008 and the appointment order of the respondent
No.5 was cancelled and the appellant was directed to be appointed.
This order of the Collector was subject matter of challenge before the
Additional Commissioner in revision which was dismissed vide order
dated 30.05.2008. The appellant was granted six marks for experience.
W.A. No.651/2021
Accordingly, her total tally of marks became 49 on the basis of the
order of the Collector and the Additional Commissioner whereas the
respondent No.5 had secured 40 marks.
3. These orders of the Collector and the Additional Commissioner
came to be challenged by the respondent No.5 by filing Writ Petition
No.13385/2008 and the learned Single Judge by the impugned order
dated 01.07.2021 has set aside the orders of the Collector as well as the
Commissioner.
4. The submission of learned counsel for the appellant is that the
appellant is entitled to the marks under the head of the experience in
terms of the original circular dated 10.07.2007 as modified by the
subsequent circular dated 13.09.2007. He submits that since the
appellant has the experience of three years, therefore, she was rightly
given appointment by the Collector by deciding the appeal as affirmed
by the Commissioner.
5. Opposing the prayer, learned counsel for the respondent No.5 has
submitted that the subsequent circular dated 13.09.2007 has no
retrospective applicability and the select list which was already
prepared cannot be disturbed on the basis of the subsequent circular and
that the rules of the game cannot be changed once the game
commences, therefore, the appointment is required to be made strictly
on the basis of the original circular dated 10.07.2007.
6. Learned Counsel for the State has supported the orders of the
Collector as well as Additional Commissioner.
7. Having heard learned counsel for the parties and on perusal of
record, it is noticed that the learned Single Judge has already examined
the entire issue in detail. The learned Single Judge has found that the
Circular dated 13.09.2007 by which the experience period of five years
reduced to three years was issued after the select list was drawn on
19.08.2007, therefore, the said circular will have no application. It has
also been noted that when the advertisement was issued on 31.07.2007
and wherein the last date of submission of application was 16.08.2007,
at that time, the original circular dated 10.07.2007 was in existence
wherein, 10 marks were provided for experience for a period of five
W.A. No.651/2021
years or more. There was no provision for break up of these ten marks
year-wise for experience less than five years. Learned Single Judge has
also rightly placed reliance upon the judgment of the Supreme Court in
the matter of Secretary, Andhra Pradesh Public Service Commission
Vs. B. Swapna and others, 2005 (4) SCC 154 and in the matter of
State of Bihar and others Vs. Mithilesh Kumar, 2010 (13) SCC 467
wherein it has been held that once the process of selection starts, the
prescribed selection criteria cannot be changed.
8. We have also examined tahe circular dated 13.09.2007 which
clearly stats that since for some of the vacant posts the application
forms were not received, therefore, one time relaxation was granted in
criteria. This circular nowhere provides that the relaxation is with
retrospective effect.
9. Counsel for the appellant has also placed on record in writ appeal
another circular dated 23.07.2009 but the said circular itself makes it
clear that the conditions modified by that circular were applicable to the
selection process and the vacancies arising in future. Hence, the said
circular also can have no application in the selection process which was
initiated prior to issuance of that circular.
10. Learned counsel for the respondent No.5 has also pointed out that
the order of learned Single Judge has already been given effect to and
the appointment of the appellant has been cancelled and the respondent
No.5 has been given the joining.
11. In view of the aforesaid, we are of the opinion that the order of
learned Single Judge does not suffer from any error and no case for
interference is made out. The writ appeal is accordingly dismissed.
(PRAKASH SHRIVASTAVA) (VIRENDER SINGH)
JUDGE JUDGE
Biswal
Digitally signed by SHIBA
NARAYAN BISWAL
Date: 2021.07.31 12:30:35 +05'30'
