Anil Vishwakarma vs State Of M.P.
2021 Latest Caselaw 7612 MP

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR



 WRIT PETITION NO.                            13342 /2019
 Parties Name                ANIL VISHWAKARMA
                                VS.
                             STATE OF MADHYA PRADESH & OTHERS.
 Bench Constituted           Single Bench
 Judgment delivered By       HON'BLE SHRI JUSTICE VISHAL DHAGAT
 Whether       approved   for YES/NO
 reporting
 Name of counsel for parties For petitioner:Shri Shashank Shekhar Dugwekar, Adv.
                             For State: Shri Aman Pandey, Panel Lawyer.
 Law laid down               -
 Significant       paragraph -
 number


                                 (O R D E R)
                                 22/11/2021

       Petitioner has filed this writ petition calling in question orders dated

04.08.2012 (Annexure-P/6) and 05.07.2016 (Annexure-P/7) passed by

Upper Secretary, Government of Madhya Pradesh Department of Home,

Bhopal (MP). Vide order dated 04.08.2012, respondent No.4 namely Guru

Prasad Parasar was placed below Vinay Pal and above petitioner in

gradation list. Petitioner had filed representation against said order and his

representation was rejected by order dated 05.07.2016 (Annexure-P/7).

2. Learned counsel for the petitioner submitted that petitioner belongs to

OBC category and was selected for post of Deputy Superintendent of Police

and was placed at Sr. No.9 in select list. Appointment letter was issued to

petitioner on 09.02.2000. Respondent No.4 was not in merit list and he was

placed in waiting list at Sr No.1. One Anurag Kapil who was at Sr.No.2 in

the select list did not join the service and therefore, appointment letter was

issued to respondent No.4. It is submitted by him that name of petitioner in

gradation list of 2009 was at Sr.No.220 and name of respondent No.4 was at

Sr. No.228. Private respondent No.4 filed a representation challenging

gradation list and made a prayer for placing his name above petitioner. In

note-sheet dated 03.05.2012 opinion was expressed that seniority of

candidate from wait list will come below the last candidate in the merit list,

therefore, no change in gradation list is required which was prepared in year

2009. Opinion was also called from Public Service Commission and PSC

gave its opinion that respondent No.4 was in merit list at Sr. No.31. Public

Service Commission prepares merit list on basis of marks obtained by

candidates in examination. Person whose name is recommended from

waiting list, name of such candidate is to be placed below last candidate

from merit list.

3. Second letter which was sent by Public Service Commission dated

15.06.2012 in paragraph-7, MPPSC has opined for correction of gradation

list in paragraph No.7 of letter dated 15.06.2012. Thereafter, note-sheet was

put up on note no.4/N for orders on note. Reasons for approval of proposal

in paragraph no.7 of letter dated 15.06.2012 is not mentioned in letter dated

29.06.2012. Thereafter, order was passed by Upper Secretary, Government

of Madhya Pradesh Department of Home on 04.08.2012 and name of

respondent No.4/Guru Parasar was placed below the name of Vinay Pal and

above Anil Vishwakarma/petitioner. Thereafter, petitioner has preferred a

representation which has also been rejected vide order dated 07.07.2016.

4. Learned counsel appearing for petitioner has assailed the impugned

orders on two counts:- (i) respondent No.4 has raised an objection to

gradation list after period of 9 years. Counsel for petitioner placed reliance

on judgement reported in (2004) 2 SCC 459 {P. Shrinivas Vs. M.

Radhakrishna Murthy & Others}. It was argued that seniority list was not

challenged for almost a decade, therefore, inter-se seniority between

petitioner and respondent No.4 cannot be disturbed after lapse of 9 years.

(ii) wait list candidate is to be placed below the last candidate in select list.

Counsel for petitioner relied on judgement reported in 1994 Supp(2) SCC

591 {Gujarat State Dy. Executive Vs. State of Gujarat and Others}. It was

argued that wait list is a list of eligible and qualified candidates who in order

of merit are placed below the last selected candidates. Respondent No.4 was

a wait list candidate, therefore, his name ought to have been placed below

the last candidate in the selection list, therefore, impugned orders are bad in

law and deserves to be quashed.

5. None appeared for respondent No.3 i.e. Madhya Pradesh Public

Service Commission. Notice was already served on respondent No.3 and

reply has also been filed by PSC.

6. In preliminary submission, respondent No.3 had made an averment

that respondent No.3 is a formal party and Home Department of State of

Madhya Pradesh is main contesting party in the matter. He relied on letter

written by Law Officer, MPPSC to Principal Secretary, Department of

Home wherein it has been stated that PSC is a formal party and respondent

No.1 may defend the matter in Court. None appeared for respondent No.4

despite services of notice by substituted mode. Court proceeds ex-pate

against respondent No.4.

7. Learned Panel Lawyer appearing for State had filed its reply and has

stated therein that PSC had made a recommendation and on basis of

recommendation made by PSC gradation list was corrected. It was stated

that respondent authority has rightly considered the representation. Decision

has been taken on basis of opinion expressed by PSC. In view of aforesaid,

Panel Lawyer appearing for State made a prayer for dismissal of writ

petition.

8. Heard the counsel appearing for petitioner as well as State.

9. There was no inordinate delay on part of respondent No.4 to

challenge the gradation list. Gradation list was drawn up in year 2009 and

immediately thereafter, it has been challenged. It is not a case that gradation

list has been drawn 3 or 4 years earlier but same has not been challenged,

therefore, there is no force in the arguments of counsel appearing for the

petitioner that respondents committed an error in considering the

representation of respondent No.4.

10. Next question for consideration is "whether wail list candidate is to be

placed below the last candidate in the merit list?"

11. Perused representation filed by respondent No.4 before Additional

Chief Secretary, Department of Home Government of Madhya Pradesh,

Bhopal. It was averred that one Anurag Kapil was at Sr. No.2 in merit list of

Dy.SP and he did not join, therefore, respondent No.4-Guru Parasar was

issued appointment letter on 09.02.2000. In the merit list prepared by PSC

for appointment to the post of Dy.SP name of petitioner occurs at Sr.No.9.

Name of petitioner in main list of PSC was at Sr.No.36. Name of respondent

No.4 in merit list of PSC was at Sr.No.31. When candidate from merit list at

Sr. No.2 Anurag Kapil did not join then respondent No.4 was given

appointment. Since respondent No.4 has secured more marks, therefore, his

name is to be placed above petitioner/Anil Vishwakarma. It was stated in

representation that petitioner Anil Vishwakarma was at Sr.No.36 of the merit

list of PSC whereas respondent No.4 was at Sr. No.31 of the merit list.

Since, respondent No.4 was given appointment letter due to non joining of

Anurag Kapil who was at Sr.No.15 of the main list, therefore, respondent

No.4 ought to have been placed above petitioner/Anil Vishwakarma and

below Vinay Prakash Pal. Said representation of respondent No.4 was

allowed after taking opinion from PSC.

12. On perusal of note-sheet, it is found that Public Service Commission

has given opinion in letter dated 15.06.2012 and has approved paragraph

No.7. On receiving of said opinion merits list was amended. Neither PSC

nor Government of Madhya Pradesh has placed on record letter dated

15.06.2012 on basis of which decision was taken to amend the merit list.

Initially General Administration Department has expressed opinion that

candidate from wait list is to be placed below the person who is last in the

merit list. Since respondent No.4 was at Sr.No.1 in wait list, therefore, his

name is to be placed before last candidate of the merit list. Said opinion was

forwarded to PSC and thereafter, on receiving opinion of PSC decision was

taken to pass impugned orders dated 04.08.2012 and 05.07.2016.

13. Rule 12 and 12(1) of The M.P. Civil Services (General Conditions of

Services) Rules, 1961 are relevant in this case and quoted at under:-

"12. Seniority. - The seniority of the members of a service or a distinct branch or group of posts of that service shall be determined in accordance with the following principles, viz.,-

(1) Seniority of Direct Recruits and Promotees. -

(a) The seniority of persons directly appointed to a post according to rules shall be determined on the basis of the order of merit in which they are recommended for appointment irrespective of the date of joining. Persons appointed as a result of an earlier selection shall be senior to those appointed as a result of a subsequent selection."

Rule 3, Rule 12(1), Rule 12(2), Rule 14(1) and Rule 14(2) of Madhya

Pradesh Police Executive (Gazetted) Services Recruitment and Promotion

Rules, 2000 are also relevant and therefore they are quoted as under:-

"3. Scope and application.--Without prejudice to the generality of the provisions contained in the Madhya Pradesh Civil Services (General Conditions of Service) Rules, 1961, these rules shall apply to every member of the service as mentioned in Schedule I.

12. List of candidates recommended by the Commission.--(1) The Commission shall forward to the Government a list arranged in order of merit of candidates who have qualified by such standards as fixed by it and of candidates who belong to Scheduled Caste, Scheduled Tribes and Other Backward Classes who though not qualified by that standard, are declared by the Commission to be suitable for the appointment to the service with due regard to the maintenance of efficiency of administration. The list shall also be published for general information.

(2) Subject to the provisions of these rules and the Madhya Pradesh Civil Service (General Conditions of Service) Rules, 1961 candidates will be considered for appointment to the available vacancies in the order in which their names appear in the list.

14. Fixation of seniority and inter-se-seniority.-- (1) Members of service appointed in one calendar year shall be en-bloc senior to the members of service appointed in succeeding years. (2) Inter-se seniority of members of service appointed by direct recruitment from one select list shall be arrived at by adding the total number of marks obtained in recruitment examination held by the Commission to the total number of marks obtained in basic training as referred in the Rule 13(2). If a probationer fails or does not appear in the first attempt in one or more subject or paper or discipline during basic training, and if he successfully passes the same in the next attempt, no mark shall be added with respect to such subject or paper or discipline in the grand total of marks obtained by him in the final merit list to decide inter- se-seniority.

14. From perusal of aforesaid rules, it is clear that seniority of person

directly appointed to a post is to be determined on basis of the order of merit

in which they are recommended for appointment irrespective of the date of

joining according to Rule 12(1) of The M.P. Civil Services (General

Conditions of Services) Rules, 1961. Petitioner and respondent No.4 had

appeared in State Public Services Examination and they were directly

appointed on the post of Dy.SP and the post held by them is mentioned in

Schedule-I as they were appointed in junior pay-scale of Rs.8000-275-

13500/- and both these rules are applicable to petitioner as well as

respondent No.4. As per Rule 12 of Rule of 2000, Commission shall

forward to the Government a list arranged in order of merits of candidates

who have qualified in the examination and also candidates who belong to

the Scheduled Caste, Scheduled Tribes and Other Backward Classes are

declared by the Commission to be suitable for the appointment. As per Rule

14(1) members of service appointed in one calendar year shall be en-bloc

senior to the members of service appointed in succeeding years. As per Rule

14(2) inter-se-seniority of members of service appointed by direct

recruitment is to be arrived at by adding the total number of marks obtained

in recruitment examination held by the Commission and marks obtained in

basic training as referred to in Rule 13(2).

15. In case of 1994 Supp(2) SCC 591 {Gujarat State Dy. Executive Vs.

State of Gujarat and Others} learned Apex Court in paragraph Nos.8 and 9

has held as under:-

"8. Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate?

These are some important questions which do arise as a

result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent, authority prepares a waiting list then it is in respect of those ten seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.

9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies

available in future. If the waiting list, in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service."

16. Inter-se seniority is to be determine by counting total marks of

candidates in recruitment examination and basic training word used in Rule

14(2) is "one select list". Wait list is not part of the select list as per the

judgement of Apex Court in case of Gujarat (supra). As per said judgement

wait list prepared does not furnish sources of recruitment. It is operative

only for the contingency if selected candidate does not join and person from

wait list may be pushed up and appointed in the vacancy so caused.

17. Rule 14 (3) of Rules 2000 is to be read without prejudice to generality

of provisions contained in M.P. Rules, 1996 along with Rules 12 (1) of

Rules, 1961. Apex Court in case of Gujarat (supra) has held that wait list

candidate shall be placed below the last candidate in the select list.

Impugned order does not reflect the reason why respondent No.4 was given

seniority over the petitioner. Initially GAD formed opinion that respondent

No.4 is to be placed below the petitioner as he was wait list no.1 candidate

and there shall be no change in the seniority list.

18. Letter of PSC dated 15.06.2012 in paragraph No.7 on basis of which

decision is taken has not been placed by respondents/State or PSC on

record. Respondents/State as well as MPPSC has failed to meet argument

no.2 advanced by counsel for petitioner.

19. Considering the aforesaid facts and circumstances of the case and

particularly Rule 12 of The M.P. Civil Services (General Conditions of

Services) Rules, 1961 and Rule 14 of the M.P. Police Executive (Gazetted)

Services Recruitment and Promotion Rules, 2000 and judgement of Apex

Court in case of Gujarat (supra), I am of considered opinion that

respondent No.4 shall be placed below petitioner in the gradation list.

20. In view of same, orders dated 04.08.2012 (Annexure-P/6) and

05.07.2016 (Annexure-P/7) are quashed. Respondents are directed to correct

the gradation list issued on 01.01.2009 and assign proper seniority to

petitioner.

21. Writ petition filed by petitioner is allowed.

(VISHAL DHAGAT) JUDGE shabana Digitally signed by SHABANA ANSARI Date: 2021.11.23 17:16:48 +05'30'