Smt.Arti Singh vs Triveni Pandey
2021 Latest Caselaw 6970 MP

                                            1

THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH,
                   AT JABALPUR

                             (DIVISION BENCH)
                               W.A.No.362 /2021

     Smt.Arti Singh                                            ....Appellant
                                      Versus


    Triveni Pandey and others                                 .....Respondents
      ---------------------------------------------------------------------------------
      Coram :
              Hon'ble Mr. Justice Ravi Malimath, Chief Justice.
              Hon'ble Mr. Justice Vijay Kumar Shukla, Judge.
      ---------------------------------------------------------------------------------
      Presence :
              Shri R.B.Sahu, learned counsel for the appellant.
              Shri Siddharth Gulatee, learned counsel for the respondent
              no.1.
              Shri Swapnil Ganguly, learned Deputy Advocate General
              for the respondent nos. 2 to 4.
      ---------------------------------------------------------------------------------

                               JUDGMENT

(28/10/2021)

Per : V.K. Shukla, J.

The present intra court appeal has been filed under Section 2(1) of

Madhya Pradesh Uccha Nyayalaya (Khand Nyaypeeth Ko Appeal)

Adhiniyam, 2005, being aggrieved by the order dated 16-03-2021, passed

by the learned Single Judge in W.P. No.8770/2020 whereby the writ

petition filed by the respondent no.1/writ petitioner has been allowed

and the order passed by the Additional Commissioner dated 11-05-2020

has been quashed. The learned Single Judge has directed that the order

passed by the Collector shall be implemented by the authorities and the

respondent no.1/writ petitioner may be given appointment on the post of

Up-Aganwadi Karyakarta at Mini Aganwadi Kendra Dongariyatola,

Gram Panchayat Bargawan.

2. The respondent no.1/writ petitioner filed a petition challenging the

order dated 11-05-2020 passed by the Additional Commissioner,

Shahdol, whereby the appeal filed by the appellant was allowed on the

ground that appellant was not made a party before the Collector, Anuppur

and opportunity of hearing was not granted to the appellant. The order

of Collector was set aside and the matter was remanded back before the

Collector to hear it afresh making appellant as a party in the appeal.

3. The respondent no.1/ writ petitioner has challenged the impugned

order passed by the Additional Commissioner on the ground that the

appellant who was at serial no.2 in the merit list was granted

appointment vide order dated 11-05-2017. The said order of appointment

was conditional and the same was subjected to final decision which will

be passed in Appeal No.53/2017 pending before the Collector. Since the

Collector has allowed the appeal filed by the respondent no.1/ writ

petitioner and the respondent no.1/writ petitioner has secured 71.5

marks, therefore, she is entitled to get appointment.

4. Learned counsel for the appellant submitted that the learned

Single Judge has erred while allowing the writ petition filed by the

respondent no.1/writ petitioner without considering the fact that the

appellant was not made a party before the Collector and therefore, the

Additional Commissioner has rightly allowed the appeal and the

matter was remanded back before the Collector.

5. We have taken note of the appointment of the appellant which

clearly stipulates Condition No.7 that the appointment of the appellant

shall be subject to final decision which may be passed in Appeal

No.53/2017 before the Collector. Later, the appeal filed before the

Collector by the respondent no.1/writ petitioner was allowed.

6. The learned Single Judge has taken into consideration the order of

appointment and also the Condition no.7 in the said order. It has been

held that the appellant joined on the post of Up-Aganwadi Karyakarta

accepting all the conditions mentioned in the appointment order dated

11-05-2017. Despite being aware of Condition No.7, the appellant did

not file any application to become a party in appeal and not challenged

the Condition No.7 imposed upon her in the appointment order dated

11-05-2017. Since she has accepted Condition no.7, therefore, her

appointment is subject to outcome of final decision in the Appeal

No.53/2017. When order in appeal is passed and the respondent

no.1`/writ petitioner has been granted benefit of some extra marks and

she came at Serial No.1 in the merit list then the appellant cannot

contend that she was not a party in the appeal before the Collector and

the order is not binding on her. The appellant has accepted Condition

No.7 in the appointment order and never raised any grievance against

it. The appellant got 65.25 marks whereas respondent no.1/writ petitioner

has got 71.5 marks and was more meritorious. The learned Single Judge

has further held that even if opportunity of hearing is granted to the

appellant, same will not have any effect and it will be an empty

formality as the appellant has not challenged her rank in the provisional

list and she has also not challenged total number of marks granted to

her in the provisional list . The respondent no.1/writ petitioner is more

meritorious candidate than the appellant and further the appellant is

bound by condition no.7 in the appointment order dated 11-05-2017.

7. We do not find any illegality in the order passed by the learned

Single Judge warranting any interference in the present intra court

appeal. Accordingly, the appeal is dismissed. No order as to costs.

Pending interlocutory application(s), if any, is also disposed of.

      (RAVI MALIMATH)                     (VIJAY KUMAR SHUKLA)
        CHIEF JUSTICE                             JUDGE


hsp
      Digitally signed
      by HARSAHAI
      PATERIYA
      Date: 2021.10.29
      17:29:03 +05'30'