Madhya Pradesh High Court
Smt. Mamta Shrivastava vs Women And Child Development ... on 14 February, 2022
Author: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 14th OF FEBRUARY, 2022
WRIT APPEAL No. 387 of 2020
Between:-
SMT. MAMTA SHRIVASTAVA W/O SHRI
MANISH SHRIVASTAVA , AGED ABOUT 29
YEARS, OCCUPATION: SERVICE VILLAGE
CHANDWASA TEH. GAROTH (MADHYA
PRADESH)
.....APPELLANT
AND
WOMEN AND CHILD DEVELOPMENT
1
DEPARTMENT PRINCIPAL SECRETARY
.
VALLABH BHAWAN BHOPAL (MADHYA
PRADESH)
2 COMMISSIONER WOMEN AND CHILD
. DEVELOPMENT DEPARTMENT SATPUDA
BHAWAN BHOPAL (MADHYA PRADESH)
DISTRICT PROJECT OFFICER WOMEN AND
3 CHILD DEVELOPMENT DEPARTMENT ,
. INTERGRETED CHILD DEVELOPMENT
PROJECT MANDSAUR DIST MANDSAUR
(MADHYA PRADESH)
4 PROJECT OFFICER INTEGRETED CHILD
. DEVELOPMENT PROJECT GAROTH , DIST-
MANDSAUR (MADHYA PRADESH)
SMT. SONIYA F/O SHRI HARISH
5 CHANDRA , AGED ABOUT 21 YEARS, R/O:
. VILLAGE CHANDWASA , TAHSIL
GAROTH , DISTRICT MANDSAUR
(MADHYA PRADESH)
.....RESPONDENTS
Shri Amit Raj, learned counsel for the appellant.
Shri Vivek Dalal, learned Government Addl. A.G for the
respondent/State.
Shri Sachin Parmar, learned counsel for the respondent No.5.
ORDER
The appellant/ petitioner has filed this present petition being
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aggrieved by the order dated 10.12.2019 whereby writ petition
No.1600/2018 has been dismissed by the Writ Court and whereby
appointment of respondent No.5 on the post of Aganwadi Assistant has
been affirmed.
The facts of the case in a nutshell for disposal of this writ appeal
are as under: -
1. In July 2015 an advertisement was issued by the appellants
inviting the applications for appointment on the post of Aganwadi
Assistant at Aganwadi Center No.6 Village Chandwasa. As many as
many 11 applications were received and after scrutiny of the
applications, the provisional selection list was published on 24.09.2015
in which appellant/petitioner secured a placement at sr. no. 2 in the
provisional selection list by securing 60.00 marks, the name of
respondent No.5 (Smt. Soniya) has been placed at serial number 11
with the note that she did not submit 5th class mark sheet meaning
thereby her candidature was not considered by the committee. The
objections were called till 08.10.2015 failing which provisional list
shall be treated as the final list. Since no objections were received,
therefore, vide order dated 23.12.2015. the appellant/ petitioner has
been appointed as an Aganwadi Assistant in the aforesaid centre.
2. Being aggrieved by her non-selection, respondent No.5
preferred an appeal before the Collector which was registered as
Appeal No.30/Appeal 15-16 in which the selected candidate i.e.
appellant was not made party/non-applicant. Vide order dated
20.03.2016 appeal was disposed of with a direction that opportunity of
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hearing is given to her in respect of rejection as well as BPL card of the
appellant be examined. In compliance with the aforesaid order again
the case was considered and vide order dated 20.06.2016 the
appointment of the appellant was cancelled and vide order dated
22.06.2016 respondent no. 5 has been appointed.
3. Being aggrieved by the aforesaid order dated 22.6.2016, the
appellant/petitioner preferred an appeal No.75/Appeal/15-16 before the
collector Mandsaur. Vide order dated 31.12.2016 the Collector has
allowed the appeal and set aside the appointment dated 22.6.2016 of
respondent No.5 on the ground that the 5th Class mark sheet was not
filed along with the application form, hence, an appointment is illegal.
It has also been held that the present appellant/petitioner was not made
a party in the appeal.
4. In compliance with the aforesaid order, again vide order dated
11.01.2017 the appellant/ petitioner was appointed as Aganwadi
Assistant.
5. Being aggrieved by the order dated 31.12.2016 passed by the
Collector, respondent No.5 has preferred second appeal No.
493/Appeal/2016-17 before the commissioner, vide order dated
30.12.2017, the Additional Commissioner has allowed the appeal and
set aside the order of Collector and affirmed the appointment of
respondent No.5 as she possesses the requisite qualification for the post
and no enquiry has been conducted in respect of BPL card of the
present appellant.
6. Being aggrieved by the order dated 30.12.2017, the
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appellant/petitioner has filed a writ petition before Writ Court. Vide
order dated 10.12.2019, the Writ Court has dismissed the writ petition
on the ground that respondent No.5 had passed class 5 th by securing
65.71 marks whereas the appellant secured 59.19 marks hence she is
more meritorious than the appellant/petitioner and she was having a
minimum qualification at the time of appointment.
7. Learned counsel for the appellant submits that for the selection
to the post-Aganwadi Assistant the candidate must possess the
minimum qualification of class 5th. Respondent No.5 did not submit
the mark sheet of class 5th along with the application form. Hence her
candidature was rightly not considered, and she was placed at serial
No.11 with '' 0'' marks. She preferred an appeal before Collector and by
that time the appellant had already been appointed vide order dated
23.12.2015, hence, she ought to have been impleaded as non-applicant.
The Collector has wrongly entertained the appeal and directed to
reconsider the case of respondent No.5. In compliance with the
aforesaid order, the appointment of respondent No.5 has wrongly been
considered and vide order dated 22.06.2016 she was wrongly been
appointed. The Collector vide order dated 31.12.2016 has rightly set
aside the order and directed to appoint the appellant/ petitioner and
accordingly, appellant was appointed vide order dated 11.01.2017. It is
further submitted that the attachment of the mark sheet with the
application was the mandatory condition in the advertisement and
respondent No.5 submitted mark sheet along with an appeal filed
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before the Collector, which is wrong practice unknown to the service
jurisprudence, hence, the impugned orders passed against the appellant
are liable to be set aside. In support of his contention, learned counsel
has placed the reliance over the judgment passed in this Court in case
of Hariom Mali Vs. State of M.P. and others (WA No.106/2015),
Reena Dubey Vs. The State of M.P. and others (WP. No.536/2020),
Viay Kranti Chandhar Vs. State of M.P. 2014 SCC Online MP 3254,
Tarni Shukla Vs. Additional Commissioner, Shahdol Division
Shahdol and others 2020 SCC Online MP 4048.
8. Learned counsel appearing for the main contesting party i.e.
respondent No.5 submits that as per the advertisement minimum
qualification is 5th class which respondent No.5 possess is not in
dispute. She filed 8th class mark sheet to get additional bonus marks,
therefore she has rightly been appointed being more meritorious than
the appellant/petitioner. Hence, no interference is called for. In support
of his contention, learned counsel placed reliance over the judgment
passed by Apex Court in case of Dolly Chhanda Vs. Chairman, Jee
and otheres (2005) 9 SCC 779 and Charles K. Sharia and otheres Vs.
Dr. C. Mathew and others (1980) 2 SCC 752 in which Apex Court has
held that the general rule is that eligibility qualification must be
possessed on the last date fixed for purpose of applying for any course
of study and there can be no relaxation regarding possession of
requisite eligibility, however, there can be some relaxation in the
matter of submission of proof of possession of said qualification.
9. We have heard the learned counsel for the parties and perused
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the record.
Appreciation and Conclusion...
10. Facts are no more in many controversies in this case, as
respondent No.5 secured 65.71 marks and this appellant secured 59.19
marks in the 5th class. The candidature of respondent no.5 was
considered as she did not file the mark sheet of 5 th class but filed the
mark sheet of 8th class. The core issue is whether such defect is fatal in
nature? The Writ Court has observed that it is not a case of appellant/
petitioner that respondent No.5 had not qualified 5th class examination
but the only dispute is that she did not submit the mark sheet along
with the application form. As per the advertisement, the candidate must
possess the minimum qualification of 5th class pass and she would be
entitled to additional marks for passing 8th class. The mandatory
condition is possession of minimum qualification which could be
gathered from the mark sheet of the higher class. The proof of the
qualification can be submitted later on and the same has rightly been
considered by the appellant authority and directed for appointment of
respondent No.5. The aforesaid view has been approved by the Apex
Court in case of Dolly Chhanda and Charles K. Sharia (supra).
11. The purpose of selection by inviting applications from aspirants
is to select more meritorious candidates in public employment.
Admittedly, respondent No.5 is more meritorious than the petitioner
but due to bonafide, she did not submit the mark sheet of the 5 th class
with the application form. The appellant as well respondent no. 5 are
from rural backgrounds, and after marriage, sometimes woman
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candidate does not keep mark sheets with them and takes time to
search, hence, the writ court has not committed any error of law while
upholding the appointment of respondent no.5. Hence, the present writ
appeal sans merit hence dismissed.
No order as to cost.
( VIVEK RUSIA ) ( RAJENDRA KUMAR (VERMA )
JUDGE JUDGE
praveen/-
Digitally signed by PRAVEEN
NAYAK
Date: 2022.02.21 17:48:09
+05'30'
