Madhya Pradesh High Court
The State Of Madhya Pradesh vs Vikram Singh Chouhan on 15 September, 2021
Author: Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
W.A. No.364/2021
The State of M.P. & ors.
-Versus-
Harish Solanki and anr.
W.A. No.321/2021
The State of M.P. & ors.
-Versus-
Bhupendra Mani Pandey and anr.
W.A. No.341/2021
The State of M.P. & ors.
-Versus-
Neelesh Awasthi and anr.
W.A. No.342/2021
The State of M.P. & ors.
-Versus-
Kapoor Tripathi and anr.
W.A. No.345/2021
The State of M.P. & ors.
-Versus-
Naresh Behra and anr.
W.A. No.346/2021
The State of M.P. & ors.
-Versus-
Rahul Pandey and anr.
W.A. No.365/2021
The State of M.P. & ors.
-Versus-
Birendra Kumre and anr.
2
W.A. No.366/2021
The State of M.P. & ors.
-Versus-
Dhan Singh and anr.
W.A. No.367/2021
The State of M.P. & ors.
-Versus-
Omprakash Chongde and anr.
W.A. No.393/2021
The State of M.P. & ors.
-Versus-
Sanjay Kumar Uikey and anr.
W.A. No.394/2021
The State of M.P. & ors.
-Versus-
Krishna Kumar Pandey .
W.A. No.395/2021
The State of M.P. & ors.
-Versus-
Vikram Singh Bamaniya and anr.
W.A. No.396/2021
The State of M.P. & ors.
-Versus-
Vikram Singh Chouhan and anr.
W.A. No.397/2021
The State of M.P. & ors.
-Versus-
Dharmendra Singh Dhurvey & and anr.
W.A. No.421/2021
The State of M.P. & ors.
3
-Versus-
Balwant Singh and anr.
W.A. No.422/2021
The State of M.P. & ors.
-Versus-
Miss Faimida Khan
W.A. No.423/2021
The State of M.P. & ors.
-Versus-
Santosh Yadav & ors.
W.A. No.424/2021
The State of M.P. & ors.
-Versus-
Jitendra Singh Mawal
W.A. No.425/2021
The State of M.P. & ors.
-Versus-
Darshan Shukla
W.A. No.428/2021
The State of M.P. & ors.
-Versus-
Bijendra Verma
----------------------------------------------------------------------------------
Appearance :
Shri B.D. Singh, Govt. Advocate for the appellants/State.
Shri Abhishek Arjaria, Shri Ajay Pal Singh, Shri Prashant Sharma,
Shri Sanjay K. Agrawal, Shri Mahendra Pateriya, Shri Siddharth
Sharma and Shri Deo Krishna Katare, advocates for the respondents
in respective writ petition.
4
_______________________________________________________
CORAM :
Hon'ble Shri Justice Mohammad Rafiq, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
---------------------------------------------------------------------------------
[Hearing convened through virtual/physical mode]
JUDGMENT
(Jabalpur, dtd.15.9.2021)
Per : Vijay Kumar Shukla, J.-
In the present bunch of intra-court appeals preferred
under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya
(Khand Nyaypeeth ko Appeal) Adhiniyam, 2005, assail is to the
common order, dated 28-01-2020, passed by the learned Single
Judge, whereby writ petitions filed by the respondents have been
allowed. For the sake of convenience the facts adumbrated in WA-
364-2021 are noted.
2. Filtering the unnecessary details, the facts which are
requisite to be exposited for the purpose of adjudication of these writ
appeals, are that the respondent No.1 was working on the post of
Sub-Inspector of Police. In pursuance to the order dated 6-8-2013
passed in WP-3134-2012 [Gokul Prasad Ajameriya vs. State of
M.P. & ors] and WP-3135-2012 [Raneet Singar and others vs.
State of M.P. & ors.], a notice was issued on 11-9-2015, whereby
the respondent No.1 was found fit for the post of Platoon
Commander in place of Sub-Inspector. The said notice was
challenged by the writ petitioner/respondent No.1 in the writ petition.
The case of the respondent No.1 was that State Government
advertised vacancies for filling-up total 371 Technical and Non-
technical posts of Sub-Inspector through the Police Recruitment Test,
2011 conducted by the M.P. Professional Examination Board,
Bhopal. The respondent No.1 participated in the said process and
had secured position in the waiting list.
3. As per Rule 12-B of the Madhya Pradesh Police
Executive (Non-gazetted) Service Recruitment Rules, 1997
[hereinafter referred to as "the Rules 1997"], a selected candidate
has to join the Jawahar Lal Nehru Police Academy, Sagar or Police
Training College, Indore for training on or before the last prescribed
date, and if the candidate fails to join the same within the stipulated
period without obtaining any permission from the appointing
authority, his name will be deleted from the select list.
4. It was contended by the respondent No.1 before the
learned Single Bench that a person whose name finds place in the
final select list, did not report at different training centre i.e.
stipulated time period and as per Rule 13-B of the Rules 1997 , a
candidate whose name finds mention in the waiting list prepared
under Rule 13-A was given offer to join. In pursuance to the same
the respondent No.1 was given joining on the post of Sub-Inspector.
5. It is setforth that when the respondent No.1 was
undergoing the training a writ petition forming the subject-matter of
WP-3502-2012 [Tajinder Singh vs. State] was filed before the
Indore Bench of this Court, wherein the respondent No.1 was made a
party. During the said period two more writ petitions, i.e. WP-3134-
2012 and WP-3135-2012 were filed before the Indore Bench. The
said writ petitions were disposed of vide order dated 6-8-2013,
whereby the revised select list was quashed, directing the Authority
to carry out the exercise of re-allocation of post based upon merit list.
Meaning thereby - exclusively on merits within a period of 60 days
from the date of receipt of the certified copy of the order.
6. In pursuance to the said direction, process of re-
allocation of post was carried out on the basis of merits. After re-
allocation of the post, allotment of 47 candidates were changed and
on the basis of the same, the order dated 11-9-2015 was issued,
wherein the name of the respondent No.1 finds mention at serial
number 16. During the said period another writ petition forming the
subject-matter of WP-5820-2012 [Rajesh Kumar Sikarwar vs.
State of M.P.] was filed before the Gwalior Bench of this Court. The
said writ petition was filed by the candidate, who had earlier joined
the services as per the merit list prepared under Rule 13-A of the
Rules 1997. Subsequently, when a waiting list candidate was given
joining in place of person, who had not joined the services, the
petitioners therein, challenged the said action on the ground that they
are more meritorious than the wait-listed candidates and, therefore,
they had right over the post.
7. Taking into consideration the submissions made by the
petitioner therein and also the Rules 13-A and 13-B of the Rules
1997, the Gwalior Bench of this Court dismissed the writ petition
holding that if any selected candidate from the select list does not
join within the stipulated period, then a candidate from the waiting
list will be offered appointment in the order of merit and if any offer
is extended to the candidate of the waiting list, the same cannot be
said to be illegal.
8. It is also to be noted that the Rules 1997 regulates
appointment of the M.P. Police Executive (Non-Gazetted Service).
Appointment by direct recruitment by selection through competitive
examination is one of the modes of appointment under Rule 6 of the
Rules 1997. No other method than provided for under Rule 9 of the
Rules 1997 can be adopted for making appointment to the service as
provided for under Rule 7 of the Rules 1997. Under Rule 13 of the
Rules 1997, merit list is prepared on the basis of marks obtained in
the written examination, physical proficiency test and interview.
Appointments are required to be made to service in order of seniority
on the basis of preference given by the candidate and availability of
post.
9. Thereafter, the respondent No.1 challenged the order
dated 11-9-2015 before this Court on the ground that the Gwalior
Bench in WP-5820-2012 - Rajesh Kumar Sikarwar (supra) has
already given verdict in favour of the wait-listed candidates and,
therefore, his case is duly covered by the order passed by the Gwalior
Bench.
10. The appellants/State in their reply asserted that the
communication dated 11-9-2015 was issued in compliance to the
order passed by the Indore Bench, dated 6-8-2013 passed in WP-
3134-2012 and WP-3135-2012 (supra). The order passed in WP-
3134-2012 (supra) was challenged in the writ appeal forming the
subject-matter of WA-1109-2013, which was ultimately dismissed on
01-12-2014, with the further direction to the appellants to prepare a
revised waiting list.
11. Against the impugned action of the appellants, 17 more
writ petitions were filed, which came up for hearing before the
learned Single Judge and the same were decided by a common order
dated 28-01-2020. By the impugned order in these intra-court
appeals, the writ petitions have been allowed setting aside the show
cause notice dated 11-9-2015 and also the consequent order dated 15-
10-2015. Be it noted, the learned Single Judge allowed the writ
petitions considering the order passed by the Gwalior Bench of this
Court in WA-256-2014 [State of M.P. vs. Pushpendra Singh
Bhadoriya].
12. The validity of the order dated 24-6-2014 passed in the
case Pushpendra Singh Bhadoriya vs. State of M.P. and others
[WP-7674-2012] was also tested by the Division Bench of the
Gwalior Bench in WA-256-2014, whereby by order dated 10-01-
2018 the writ appeal preferred by the State was allowed and the order
dated 24-6-2014 passed in WP-7674-2012 was set aside. The
learned Single Judge observed that the order passed by the Indore
Bench in the case of Gokul Prasad Ajameriya (supra) and Raneet
Singar & ors. (supra) dated 6-8-2013 as also the decision of the
Division Bench at Indore in WA-1109-2013 affirming the order dated
6-8-2013 has been distinguished by a Co-ordinate Bench in WP-
5820-2012 [Rajesh Kumar Sikarwar vs. State of M.P. and others]
and by Division Bench Bench at Gwalior by order dated 10-01-2018
passed in WA-256-2014 : Pushpendra Singh Bhadoriya (supra). It
is submitted that in WA-1109-2013, attention of this Court was not
drawn to the fact that the Sub-Inspector and Platoon Commander
carries out equal pay-scales. Hence, it is observed that the order
passed by the Indore Bench in Gokul Prasad Ajameriya (supra) is
of no assistance.
13. The learned Single Judge after referring to the Full
Bench judgment rendered in the case of Jabalpur Bus Operators
vs. State of M.P. and others, 2003 (1) MPLJ 513, observed that the
later judgment would prevail, as the order passed in the case of
Gokul Prasad Ajameriya (supra) has already been explained and
distinguished by the Co-ordinate Bench of this Court in the case of
Rajesh Kumar Sikarwar (supra). On going through the judgment
passed in the case of Gokul Prasad Ajameriya (supra) and Raneet
Singar & ors. (supra), it is noted that the aforesaid order was passed
placing reliance on the decision of Apex Court rendered in the case
of Anurag Patel vs. U.P. Public Service Commission and others,
(2005) 9 SCC 742, which was the basis for passing directions to
carry out exercise on re-allocation of post based on merits.
14. In view of the aforesaid two judgments passed in Gokul
Prasad Ajameriya (supra) and Raneet Singar & ors. (supra), the
following questions emerge for consideration :
(i) Whether the judgment passed by the
Division Bench in the case of Pushpendra Singh
Bhadoriya (supra) : WA-256-2014 is a binding
precedent, in absence of non-consideration of the
judgment rendered by the Apex Court in Anurag Patel
(supra), whereby it is categorically held that the
appointment to a post has to be done strictly in
accordance with merits as per the select list and
preference of a person higher in the select list will be
seen first and appointment has to be given
accordingly ?
(ii) Whether the judgment passed by the
Gwalior Bench in the case of Pushpendra Singh
Bhadoriya (supra) : WA-256-2014 would be an order
in per incurium, because of non-consideration of the
decision of the Apex Court in the case of Anurag
Patel (supra) which was the basis of the order passed
by the Indore Bench in Gokul Prasad Ajameriya
(supra) and Raneet Singar & ors. (supra) ?
(iii) While making appointment from the select
list whether merit can be ignored when the
appointment to a preferred post has to be made
strictly in accordance with merits as per select list
and appointment to a person higher in the select list
has to be given first appointment on the preferred post
and the person lower in the list, will be given
thereafter on the least preferred post ?
15. In view of the aforesaid obtaining factual matrix and the
questions that have emerged for consideration, we are disposed to
think that the maze has to be cleared from all spectrums and,
accordingly, we think it apt to refer the matter to a Larger Bench for
disposal of the matter.
16. Let the matter be placed before Hon'ble the Chief Justice
on administrative side for constitution of a Larger Bench.
(Mohammad Rafiq) (Vijay Kumar Shukla)
Chief Justice Judge
ac.
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2021.09.20 17:59:20 +05'30'
