Smt. Smita Shrivastava vs Smt. Gouri Singh
2022 Latest Caselaw 6869 MP

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        IN THE HIGH COURT OF MADHYA PRADESH
                           AT INDORE
                            BEFORE
                 HON'BLE SHRI JUSTICE VIVEK RUSIA
                                &
        HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

        HEARD AND RESERVED ON THE 25th OF APRIL, 2022

                      ON THE 7th OF MAY, 2022

                  WRIT APPEAL No. 1972 of 2019

     Between:-
     STATE OF M.P. THROUGH PRINCIPAL
     SECRETARY, PANCHAYAT & RURAL
1.   DEVELOPMENT DEPARTMENT, GOVT. OF
     M.P.   VALLABH    BHAWAN,    BHOPAL
     (MADHYA PRADESH)
     DIRECTOR     PUBLIC    INSTRUCTION,
2.   MAHARANA PRATAP NAGAR, BHOPAL,
     (MADHYA PRADESH)
     COMMISSIONER       RAJYA    SHIKSHA
3.
     KENDRA BHOPAL. (MADHYA PRADESH)
     JILA PANCHAYAT INDORE, THROUGH ITS
     CHIEF EXECUTIVE OFFICER, JILA
4.
     PANCHAYAT,      INDORE     (MADHYA
     PRADESH)
     DISTRICT EDUCATION OFFICER, M.O.G.
5.
     LINES, INDORE (MADHYA PRADESH)
     JANPAD PANCHAYAT, INDORE THROUGH
     ITS CHIEF EXECUTIVE OFFICER, JANPAD
6.
     PANCHAYAT,      INDORE     (MADHYA
     PRADESH)
                                                .....APPELLANTS
     BY SHRI MANISH NAIR, DEPUTY ADVOCATE GENERAL

     AND

     SMT. SMITA SHRIVASTAVA W/O SHRI AJAY
     NIGAM , AGED ABOUT 46 YEARS,
     OCCUPATION: HOUSEWIFE, R/O 209,
                            - : 2 :-

     PALSIKAR COLONY, INDORE (MADHYA
     PRADESH)
                                             .....RESPONDENT
     BY SHRI PRASANNA R. BHATNAGAR, ADVOCATE
                  WRIT APPEAL No. 799 of 2021

     Between:-
     SMT. SMITA SHRIVASTAVA W/O AJAY
     NIGAM, AGED ABOUT 56 YEARS,
     OCCUPATION: HOUSEWIFE, R/O 209,
     PALSIKAR COLONY (MADHYA PRADESH)
                                              .....APPELLANT
     BY SHRI PRASANNA R. BHATNAGAR, ADVOCATE

     AND

     SMT.    GOURI     SINGH    PRINCIPAL
     SECRETARY, PRINCIPAL SECRETARY,
1.   PANCHAYAT AND RURAL DEVELOPMENT,
     DEPARTMENT,      VALLABH     BHAWAN
     BHOPAL (MADHYA PRADESH)
     SMT. JAYSHREE KIYAWAT, OCCUPATION:
     DIRECTOR,     PUBLIC    INSTRUCTION,
2.
     MAHARANA PRATAP NAGAR, BHOPAL
     (MADHYA PRADESH)
     SMT.    DIPTI     GOUD     MUKHARJI,
     OCCUPATION: COMMISSIONER RAJYA
3.
     SHIKSHA KENDRA, ARERA COLONY,
     BHOPAL (MADHYA PRADESH)
     SMT. NEHA MEENA OCCUPATION: CHIEF
4.   EXECUTIVE OFFICER JILA PANCHAYAT
     INDORE (MADHYA PRADESH)
     SHRI       RAJENDRA         MAKWANI
     OCCUPATION: DISTRICT EDUCATION
5.
     OFFICER M.O.G. LINES NEAR MHOW
     NAKA INDORE (MADHYA PRADESH)
     KUSUM MANDLOI OCCUPATION: CHIEF
     EXECUTIVE        OFFICER      JANPAD
6.
     PANCHAYAT       INDORE.     (MADHYA
     PRADESH)
                                            .....RESPONDENTS
BY SHRI MANISH NAIR, DEPUTY ADVOCATE GENERAL


                      ORDER

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The State of Madhya Pradesh has filed this Writ Appeal under Section 2(1) of Madhya Pradesh Khand Nyay Peeth Ko Appeal, Adhiniyam, 2005 against the order dated 11.07.2019 passed in Writ Petition No.3698/2014 filed under Article 226 of the Constitution of India whereby the case of respondent (hereinafter referred to as " Writ Petitioner'') for appointment to the post of Samvida Shala Shishak Grade-III has been allowed. This Writ Appeal is barred by 51 days, hence, an application (I.A. No.5488/2019) is filed.

Keeping in the reasons mentioned in the application, which is supported by an affidavit of Officer Incharge and there is no rebuttal by the respondent, hence, same is allowed.

With the consent of the parties, Writ Appeal is heard finally. The facts of the case are as under:-

According to the Writ Petitioner, she was appointed as an Instructor in the Non-Formal Education Centers established by the State Government in the year 1990. She worked on the said post till 01.09.1993. Later on , the Government decided to abolish the post of Instructors. The State Government in the power conferred by Sub-Section (1) of Section 95 read with Sub-Section (2) of Section 70 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for short '' Adhiniyam, 1993'') has made recruitment rules for services of the Samvida Shala Shishak Grade-I, II and III in the name of the M.P. Panchayat Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005 (for short '' Rules, 2005'') on 06.05.2005.

The appellants conducted an examination for the selection of Samvida Shala Shishak Grade-III on 31.08.2008. The Writ

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Petitioner was permitted to participate in the examination and she was declared pass but no appointment order was issued in her favour by the State. The Writ Petitioner served a legal notice. The State of Madhya Pradesh has amended the Rules,2005 on 29.07.2009 by publishing Gazette Notification by inserting Sub- Rule (2) of Rule 7(a) to the effect that candidates who are working on the post Instructor in the Non formal education centres are eligible to get an appointment. The aforesaid amendment made, the writ petitioner ineligible to be appointed for the post of Samvida Shala Shishak Grade-III as she had already left the job of instructor w.e.f. 01.09.1993. In view of the said amendment, the appellants have denied the appointment to the writ petitioner.

The Writ Petitioner approached this court by way of Writ Petition No.1578/2011 (s). Similarly, situated ex instructors had also filed writ petitions before the Principal Seat of this High Court at Jabalpur. One of the Writ Petition No.91/2011 was allowed on 21.02.201 with directions to the State to consider the case of the petitioner on the post of Samvida Shala Shishak Grade-III in view of the unamended criteria. The High Court has quashed the notification. In view of the aforesaid order, Writ Petition No.1578/2011 (s) filed by the writ petitioner came to be allowed on 01.02.2013.

Despite the aforesaid order passed by this court , vide order dated 20.06.2013 District Education Officer, Indore has rejected the claim of the writ petitioner. The writ petitioner filed contempt petition No.716/2013 which was disposed of vide order dated 03.12.2013 with liberty to writ petitioner to submit fresh representation. The Writ Petitioner submitted fresh representation

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and Commissioner Rajya Shiksha Kendra relying on amended Rules 7-A Sub Rule-(2) again dismissed it on 22.01.2014 . Hence, again writ petitioner filed the Writ Petition before this Court. Vide order dated 11.07.2019 by placing reliance on the judgment passed in the case of Anil Bhatt Vs. State of M.P. reported in 2012 (2) MPLJ 82, the writ court has allowed the Writ Petition hence, this Writ Appeal before this Court.

Shri Manish Nair, learned Deputy Advocate General has again reiterated that at the time of recruitment, the writ petitioner was not working as an Instructor. She had already left the job in the year 1993, therefore, she was ineligible to claim the appointment under the rules. learned Dy Advocate General further submits that the writ petitioner has now reached the age 56 years(approx..), hence, she has become overage and she would get only 4-5 years of service, hence, impugned order be set aside.

Heard.

Undisputedly, the writ petitioner was appointed as Instructor in the Non-Formal Education Centers in the year 1990 and worked upto 01.09.1993. W.e.f. 06.05.2005, Rules, 2005 came into force. The Writ Petitioner was fulfilling the eligibility criteria for the post of Samvida Shala Shishak Grade-III. Accordingly, she applied and appeared in the test conducted on 31.08.2008, she passed the examination and was declared a successful candidate, but the appointment order was not issued to her by the Government of M.P..

The State Government made an amendment in Rule, 2005 w.e.f. 29.07.2009 inserting condition by way of Sub-Rule (2) of Rule 7-A that working instructors are eligible to appear in the

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selection process for the post of Samvida Shala Shishak Grade-III. Not only the writ petitioner but other similarly placed instructors approached this High Court by way of various Writ Petitions. One of the writ petitions came to be allowed only on the ground that the amended provision would not apply in the selection held in the year 2008 in which the result was declared on 19.12.2008 i.e. before the amendment in the Rules. This Court in case of Anil Bhatt (Supra) had quashed the circular dated 05.10.2009 whereby the criteria of selection were changed and a revised list was issued The Writ Petition filed by the Writ Petitioner came to be allowed on 01.02.2013 with direction to the respondents to consider the case of the writ petitioner on the post of Samvida Shala Shishak Grade-III, in view of the unamended criteria. The operative part of the order is reproduced below:-

''Resultantly, keeping in view the aforesaid judgment as the circular issued by the State Government, by which the criteria in respect of selection was changed, has already been quashed. The respondents are directed to consider the case of the petitioner on the post of Contract Teacher Gr.III in view of the unamended criteria and in case the petitioner is found otherwise eligible for appointment, the respondents shall issue necessary orders in accordance with law. The writ petition is allowed.'' After the aforesaid direction, nothing remained for the State to reject the claim of the writ petitioner. Despite the aforesaid order passed by this Court, vide order dated 20.06.2013, the District Education Officer has rejected the claim of the writ petitioner only on the ground that, she had left the job of instructor on 01.09.1993, hence, she was ineligible for appointment on the post of Samvida Shala Shishak Grade-III. The Writ Petitioner filed contempt petition No.716/2013 in which liberty was granted to submit a fresh representation but the appellants adopted an adamant attitude and

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rejected the claim on the same ground.

After the order passed in contempt petition, again the appellants rejected the claim of the writ petitioner on 22.01.2014. The Writ Petitioner has filed Writ Petition No.3698/2014 placing the order passed by the Gwalior Bench of this High Court in the case of Manmohan Mathur Vs. State of M.P (W.P. No.1102/2010 (s) allowed on 30.7.2012). The Writ Petitioner has also filed an order of Writ Appeal No.185/2013 whereby the Division Bench has dismissed the Writ Appeal filed by the appellants. The Special Leave Petition No.16115/2015 had also been dismissed and after the dismissal of SLP all the instructors similarly placed writ petitioner have been appointed vide order dated 13.03.2018. Thereafter vide order dated 29.11.2018, six more instructors were appointed. In view of the aforesaid order, again writ petition was disposed of with a direction to consider the claim of the writ petitioner but unfortunately, Collector, Indore vide order dated 21.10.2019, has rejected the representation of the writ petitioner again, relying on Rule 7-A.

Since the State Government has no option but to appoint the writ petitioner and other instructors, therefore, vide notification dated 21.03.2018, the provision of 7-A has been made effective w.e.f. 01.01.2008 i.e. prior to the date of recruitment in order to deny the legitimate claim of the writ petitioner. Despite the aforesaid amendment, the Writ Court has allowed the writ petition with a direction to the appellants to consider the case of the writ petitioner on the post of Samvida Shala Shishak Grade-III.

This case is a glaring example of the adamant attitude of the State Government. Mighty State Government has made all possible

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efforts to deny the appointment of the writ petitioner on the post of Samvida Shala Shishak Grade-III. The writ petitioner is fighting for her right since 2008 fulfilling all the educational qualifications for the post of Samvida Shala Shishak Grade-III. The writ petitioner is fighting against State for her modest claim for appointment to the post of Samvida Shala Shishak Grade-III. She had approached four times before this Court by filing the writ petitions and contempt petition and in order to deny her claim, twice State Government has amended the Rules and thereafter when they did not succeed, they have given it retrospective effect. By doing this, the State /the appellants have passed more than 14 years and made the writ petitioner overage ( 56 years) for the appointment. Every time, despite a clear cut finding that the amended rule would not apply in the case of the writ petitioner, the appellants have every time rejected her legitimate claim by relying on the amended rule. This is a fit case for proceeding with contempt against the erring officer of the State Government Now post of Samvida Shala Shishak Grade-III has already been abolished and all the Shisha karmis' have been made Assistant Teachers after qualifying for the examination. The Writ Petition has not challenged the validity of the notification dated 21.03.2018, by which the provision of 7-A has been made effective w.e.f. 01.01.2008. Therefore, in view of this subsequent development, now the petitioner is no more eligible to get an appointment hence the Writ Appeal is allowed. But looking at the conduct of the State as discussed above the Writ Petitioner is liable to be compensated by payment of Rs. 1,00,000/- (Rupees One Lakh) payable by the State .

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WRIT APPEAL NO.799/2021 Present Writ Appeal is filed against the order dated 03.02.2020 passed by Writ Court in CONC. No.2520/2019. The appellant has filed CONC. No.2520/2019 for non-compliance of order dated 11.07.2019 passed in W.P. No.3698/2014.

In view of the above order, this writ appeal is dismissed. Office is directed to place the copy of this order in connected writ appeal.

Certified copy as per Rules.

                        ( VIVEK RUSIA )                  (AMAR NATH (KESHARWANI))
                             JUDGE                                      JUDGE

                       praveen/-

Digitally signed by
PRAVEEN NAYAK
Date: 2022.05.09 10:23:31
+05'30'