Kuldeep Shinde vs The State Of Madhya Pradesh Thr
2021 Latest Caselaw 5152 MP

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                                                                 W.P. No.8257/2015

                HIGH COURT OF MADHYA PRADESH

                           BENCH AT GWALIOR

     SB : HON'BLE MR. JUSTICE S.A. DHARMADHIKARI

                       Writ Petition No. 8257 of 2015

                            Kuldeep Shinde & Ors.
                                        Vs.
                                State of M.P. & Ors.


                       Whether reportable :- Yes /No
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For Petitioner              :     Shri Vivek Khedkar, Advocate
For Respondent/State :            Shri Abhishek Mishra, Government
                                  Advocate
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                                    ORDER

(Delivered on 08/09/2021)

Challenge in this petition is to order dated 14/10/2015

(Annexure P/1) by which representation of petitioners made pursuant

to order passed by this Court on 02/07/2015 in W.P. No.3928/2015

was decided directing that departmental exam be held for recruitment

of Daily Wager and Contingency Paid Amin working in the

department. Further challenge is made to order dated 05/08/2015

(Annexure P/2) passed by respondent No.2 exercising its supervisory

power, has granted relaxation in the said recruitment subject to 5

conditions one of which is that Daily Wager/Contingency Paid

Employee in the department should possess qualification of

W.P. No.8257/2015

graduation.

(2) Learned counsel for petitioners contended that condition of

possession of graduation runs contrary to amended Schedule III of

Madhya Pradesh Irrigation Department (Gazetted) Service

Recruitment Rules, 1969 (for short Rules 1969) which w.e.f.

12/01/1990 prescribes the minimum educational qualification for

recruitment to the post of Amin as Higher Secondary School

Certificate Examination or High School Examination under 10+2

pattern from a recognized Board alongwith Patwari's training.

(3) Learned counsel for the petitioners further contended that

petitioners are eligible for holding the post of Amin as per the Rules

1969. They have also passed the departmental examination and are

discharging their duties of Amin. Earlier, W.P. No.3928/2015 was

disposed of with the direction to the respondents to decide the

representations. However, vide impugned order dated 14/10/2015,

representations have been rejected by the respondents. The State

Government issued the notification dated 05/08/2015 relaxing the age

and minimum qualification was also changed and the petitioners were

required to have minimum qualification of graduation.

(4) Learned counsel for the petitioners further contended that

without amending the Rules of 1969, the criteria laid down that is

qualification cannot be changed. Petitioners possess the qualification

of Higher Secondary and are eligible to be regularized as Amin. He

further contended that notification cannot prevail over the statutory

W.P. No.8257/2015

rules.

(5) During pendency of the petition, the State Government has

issued the direction to conduct the examination for regularization of

services of Daily Wagers/Work Charged Contingency Employees

against the vacant posts of Amin.

(6) Vide interim order dated 10/02/2016, the petitioners were

allowed to participate in the examination subject to final outcome of

the writ petition and the petitioners appeared in the examination.

(7) In return, only stand taken by the State Government is that State

Government issued the notification on 27/05/2016, therefore, no relief

can be granted. As per Rule 6 of the Rules of 1969, the method of

recruitment has been laid down. According to the schedule to the

Rules of 1969, the Superintending Engineer is the appointing

Authority of the post of Amin and minimum qualification has been

mentioned in the schedule as 8 th pass and the preference would be

given to the person who qualified Patwari training. The aforesaid rule

has been amended vide notification dated 12/01/1990, whereby the

qualification for the post of Amin has been enhanced as Higher

Secondary School Certificate Examination or the High School

Examination (10+2) system from a recognized Board and completion

of Patwari training.

(8) According to column No.6 of the aforesaid schedule,

qualification would be applicable to the person appointed before the

year of 1983, meaning thereby, there is no amendment of the minimum

W.P. No.8257/2015

qualification as mentioned in the document (Annexure P/2). Only on

the basis of so called notification (Annexure P/2), minimum

qualification has been enhanced without amending the rules and the

process of regularization on the post of Amin has been initiated.

(9) Learned counsel for the petitioners has relied upon the judgment

of the Apex Court in the case of Dr. Rajinder Singh Vs. State of

Punjab & Others [(2001) 5 SCC 482] to contend that it is the settled

position of law that no government order, notification or circular can

be a substitute of the statutory rules framed with the authority of law.

The High Court was not justified in observing that even without the

amendment of the Rules, Class-II of the service could be treated as

Class-I only by way of notification. Following such a course in effect

amounts to amending the rules by a government order and ignoring

the mandate of Article 309 of the Constitution.

(10) On the other hand, learned Government Advocate for the State

fairly submits that except the change in qualification vide impugned

notification, there is no other ground for rejection of the candidature

of the petitioners.

(11) Heard learned counsel for the parties.

(12) Upon perusal of the notification dated 05/08/2015 (Annexure

P/2), minimum qualification has been changed to graduation without

amending the Rules of 1969. Admittedly, notification can not prevail

over the statutory rules. Even otherwise, petitioners are eligible as per

the Rules of 1969. Consequently, order dated 14/10/2015 (Annexure

W.P. No.8257/2015

P/1) stands quashed and writ petition stands allowed. So far as the

change in minimum qualification vide notification dated

5/8/2015( Annexure P/2) is concerned, the same is hereby quashed.

Respondents are directed to declare the result and grant the regular

pay scale and other benefits of the post of Amin to the petitioners who

qualified in the examination since they are already working on the

post of Amin and also discharging their duties as Amin from the date

of their respective appointments. As a consequence, petitioners may

also be considered for the purpose of regularization.

(13) No order as to costs.

(S.A. Dharmadhikari) Judge (08/09/2021)

rahul Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82a b676d0cde4dee473fe77953f5, cn=RAHUL SINGH PARIHAR Date: 2021.09.09 18:17:06 -07'00'