Madhya Pradesh High Court
Smt. Shivkumari Uraiti vs The State Of Madhya Pradesh on 17 October, 2022
Author: Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 17th OF OCTOBER, 2022
WRIT PETITION No. 28162 of 2018
BETWEEN:-
SMT. SHIVKUMARI URAITI W/O SHRI RAJKUMAR
URAITI, AGED ABOUT 31 YEARS, OCCUPATION:
HOUSEWIFE R/O VILLAGE POST LAUHKARI TAHSIL
KUNDAM (MADHYA PRADESH)
.....PETITIONER
(BY SHRI BRIJESH KUMAR MISHRA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
SECRETARY WOMEN CHILD DEVELOPMENT
DEPARTMNET MANTRALAYA VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. ADDITIONAL COMMISSIONER DIVISION JABALPUR
DISTT. JABALPUR M.P. (MADHYA PRADESH)
3. COLLECTOR COLLECTOR DISTT. JABALPUR M.P.
(MADHYA PRADESH)
4. DISTRICT PROGRAMME OFFICER WOMEN AND CHILD
DEVELOPMENT DEPARTMENT DISTT. JABALPUR M.P.
(MADHYA PRADESH)
5. PROJECT OFFICER INTEGRATED CHILD DEVELOPNET
SCHEME KUNDAM DISTT. JABALPUR M.P. (MADHYA
PRADESH)
6. SMT. LAXMI BAI W/O VISHRAM PRADHAN R/O
VILLAGE POST LAUHKARI TAHSIL KUNDAM (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SANJEEV KUMAR SINGH, PANEL LAWYER)
This petition coming on for admission this day, the court passed the following:
ORDER
Signature Not Verified
Signed by: ASTHA SEN
Signing time:
10/18/2022 6:51:33 PM
Learned counsel for the petitioner submits that right of respondent No.6 to file
reply has been closed vide order dated 04/11/2020 and despite information to counsel for
the respondent No.6, there is no representation on behalf of respondent No.6.
With the consent of counsel for the petitioner and counsel for the State, heard
finally.
This petition has been filed while praying for the following reliefs:
"i. Hon'ble Court may kindly be pleased to call the record relating to the case and after
perusal of the same, suitable order may be passed to the respondents.
ii. That, this Hon'ble Court may kindly be pleased to issue an appropriate order and pleased
to quash the order dated 28/09/2018 (Annexure P/1) and order dated 05/02/2016 (Annexure P/6) in
the interest of justice.
iii. Any other suitable relief deemed fit in the facts and circumstances of the case may also
be granted together with the cost of this petition."
It is contended in the petition that the petitioner as well as respondent No.6 were
aspirants to participate in the process of Aganwadi Sahayika. After taking into
consideration the applications of as many as 7 candidates, the present petitioner having
scored 65.25% was placed at serial No.1 and private respondent No.6 who had scored
55.67% was placed at serial No.5. The provisional selection list so prepared was
objected to at the instance of private respondent No.6 and while dealing with the
objection raised by respondent No.6, the committee ultimately concluded that respondent
No.6 was also entitled for the additional 10 marks towards inclusion of her name in the
BPL list.
Accordingly, on the recommendation of the same, the appointment order dated
05/02/2016 in favour of respondent No.6 was issued which was assailed by the present
petitioner by filing an appeal before the Collector. The same was turned down vide order
dated 23/11/2016 (Annexure P/7). Assailing the order passed by the Collector, the
present petitioner preferred a Second Appeal before the Commissioner, Division Jabalpur
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Signed by: ASTHA SEN
Signing time:
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which was also dismissed vide order dated 28/09/2018 (Annexure P/1). Thus, assailing
the orders impugned, this petition has been filed.
Learned counsel for the petitioner contends that it is a case where the eligibility
criteria is being sought to be satisfied after cut off date. Undiputedly, on the date of
submission of applications, respondent No.6 did not possess the certificate pertaining to
BPL category and accordingly, she was rightly placed at serial No.5 in the provisional
select list and, subsequently along with the objection itself, BPL card was produced by
respondent No.6, the same was taken into consideration by the District Level Selection
Committee and the same was accepted too as well.
Learned counsel contends that it is a settled position of law that candidates are
required to possess the eligibility criteria on the cut off date whereas in the present case,
the BPL certificate was sought to be produced after the cut off date which could not
have been done in the present case. Learned counsel also submits that this objection was
neither considered by the Collector, nor by the Commissioner while exercising the
appellate jurisdiction.
Learned counsel while taking this Court to Annexure P/5 submits that committee
itself observed that first time along with the objection after issuance of select list, the BPL
certificate was enclosed by respondent No.6, therefore, there is no dispute as regards the
fact that the eligibility was acquired after the cut off date which is not permissible in the
light of the decision of this Court in the case of Draupati Tiwari Vs. State of M.P.
and Ors. reported in (2013) 2 MPLJ 407.
Per contra, learned counsel for the State submits that in terms of the guidelines, the
District Level Selection Committee considered the objection of the aggrieved candidates
and the committee found that the respondent No.6 was possessed with BPL certificate,
accordingly, was entitled for 10 marks in terms of the provisions laid down in the
guidelines. Upon taking into consideration the 10 marks, the respondent No.6 was rightly
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Signed by: ASTHA SEN
Signing time:
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appointed as Aganwadi Sahayika, thus, neither the Collector nor Commissioner fell in
error while dismissing the appeals preferred by the petitioner inasmuch as respondent
No.6 after getting 10 marks was most meritorious candidate having scored 65.67 % over
and above from the petitioner, thus, submits that no interference is warranted.
Heard rival submissions of the parties and perused the record.
The crux of the matter lies in Annexure P/5 i.e the minutes which are reduced into
writing by the District Level Selection Committee. The opinion expressed by the
committee is reproduced herein:
" vkifRrdrkZ Jhefr y{eh ckbZ }kjk vius vkosnu i= ds lkFk xjhch js[kk dk dkMZ layXu u fd, tkus ds
dkj.k xjhch js[kk ds vad ugha fn;s x,A lacfU/kr }kjk vkifRr ds xjhch js[kk dkMZ dh Nk;kizfr layXu dh xbZ "
A perusal of aforesaid makes it unequivocally clear that along with the objection
after issuance of selection list, the respondent No.6 first time produced the BPL
card/certificate. Thus, the moot question which was to be considered as to whether the
eligibility which was sought to be fulfilled, after the cut off date, could have been
entertained or not?
In the present case, pursuant to letter dated 01/12/2015 the applications were
invited for appointment against the post of Agawnwadi Sahayika and the last date of
application was 17/12/2015. By the cut off date, as many as 7 applications were
processed by the employer and the provisional selection list was issued on 29/12/2015.
Thereafter, the objection as regards the provisional selection list were invited from
30/12/2015 to 05/01/2016 and first time after issuance of provisional selection list, the
respondent No.6 along with her objection before the committee enclosed the BPL
card/certificate.
The Apex Court in the case of State of U.P. v. Vijay Kumar Misra, (2017) 11
SCC 521 has held that the candidates must possess the requisite qualification/eligibility
on the cut off date and thus, in absence of any provision of relaxation, the extension of
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Signed by: ASTHA SEN
Signing time:
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time cannot be granted to a candidate to place the document pertaining to
eligibility/qualification subsequently. Para 6 of the said judgment is reproduced herein as
under:-
6. The position is fairly well settled that when a set of eligibility qualifications are
prescribed under the rules and an applicant who does not possess the prescribed
qualification for the post at the time of submission of application or by the cut-off
date, if any, prescribed under the rules or stated in the advertisement, is not
eligible to be considered for such post. It is relevant to note here that in the rules
or in the advertisement no power was vested in any authority to make any
relaxation relating to the prescribed qualifications for the post. Therefore, the
case of a candidate who did not come within the zone of consideration for the
post could not be compared with a candidate who possessed the prescribed
qualifications and was considered and appointed to the post. Therefore, the so-
called confession made by the officer in the Court that persons having lower
merit than the respondent have been appointed as SDI (Basic), having been
based on a misconception is wholly irrelevant. The learned Single Judge clearly
erred in relying on such a statement for issuing the direction for appointment of
the respondent. The Division Bench was equally in error in confirming the
judgment of the learned Single Judge. Thus the judgment of the learned Single
Judge as confirmed by the Division Bench is unsustainable and has to be set
aside.
The Apex Court in the case of State of Bihar & Ors. VS. Madhu Kant Ranjan
& Anr. passed in Civil Appeal No. 7677/2021 held in paras 8 and 9 as under:-
8. At the cost of repetition, it is to be observed that in the earlier round of litigation,
the learned Single Judge specifically observed that there is no pleading in the writ
petition that the petitioner had annexed his NCC
'B'ÂÂÂ
™ certificate alongwith the original application. Once, it is found that the
respondent No. 1- original writ petitioner did not submit the photocopy of the NCC
'B'ÂÂÂ
™ certificate alongwith the original application which was the
requirement as per the advertisement and the cut-off date as per the advertisement
was 22.02.2004 and he produced the same after the physical test on 15.01.2007, the
appointing authority rightly held that he shall not be entitled to additional five marks
of NCC
'B'ÂÂÂ
™ certificate.
9. As per the settled proposition of law, a candidate/applicant has to comply with all
the conditions/eligibility criteria as per the advertisement before the cut-off date
mentioned therein unless extended by the recruiting authority. Also, only those
documents, which are submitted alongwith the application form, which are required
to be submitted as per the advertisement have to be considered. Therefore, when
the respondent No. 1 - original writ petitioner did not produce the photocopy of the
NCC 'B'™ certificate alongwith the
original application as per the advertisement and the same was submitted after a
period of three years from the cut-off date and that too after the physical test, he
was not entitled to the additional five marks of the NCC
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Signed by: ASTHA SEN
Signing time:
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'B'™ certificate. In these
circumstances, the Division Bench of the High Court has erred in directing the
appellants to appoint the respondent No. 1 - original writ petitioner on the post of
Constable considering the select list dated 08.09.2007 and allotting five additional
marks of NCC 'B'™ certificate.
The Division Bench of this Court in the case of Draupati Tiwari (Supra) held in
paragraphs 10 and 11 as under:-
10. We are unable to agree with the submissions made by learned counsel for
the respondent No. 5. To us the respondent No. 5 could not be said to be
qualified to take part in the selection for appointment on the post of Anganwadi
Worker on the last date of submission of the application form. Firstly, as per the
law laid down by the Apex Court in the case of Rekha and Ashok Sonkar once
the cut off date is prescribed, every candidate must fulfil the eligibility conditions
on the cut off date prescribed. Secondly, logically it is not possible to accept that
the respondent No. 5 would be deemed to have passed the qualifying
examination in which she has taken part in the month of July, 2007, in July, 2007
itself, since the result of which was declared only in the month of October, 2007.
Taking part in the examination is not the complete exercise of obtaining an
educational qualification as prescribed. The passing of examination would be
only when the result of the examination is declared. Only on the basis of
declaration of the result subsequently, it could not be said that a candidate must
be treated to have passed the examination with retrospective effect, from the
date he or she has taken part in the said examination. We get support in holding
so from the decision of the Apex Court in case of Council of Homoeopathic
System of Medicine, Punjab v. Suchintan, AIR 1994 SC 1761 wherein while
dealing with almost same submission, the Apex Court refused to make applicable
the
"ÂÂÃÂ
‚œdoctrine of relation back" in para 33 of report which reads thus :-
"33. Supposing he passes in that subject or subjects in the supplementary
examination he is declared to have passed at the examination as a whole. This
should obviously be so; because once he completes all the subjects, he has to
necessarily be declared to have passed. Merely on this language, "declared to
have passed at the examination as a
whole"ÂÂÂÂÂ, we are unable to
understand as to how the
"œdoctrine of relation
back" could ever be invoked. The
invocation of such a doctrine leads to strange results. When a candidate
completes the subjects only in the supplementary examination, then alone, he
passes the examination. It is that pass which is declared. If the "doctrine of
relation back" is applied, it would have the effect of deeming to have passed in
the annual examination, held at the end of 12 months, which on the face of it is
untrue.".
11. If this analogy as propounded by the learned counsel for the respondent No.
5 is accepted, then it will create such anomalies in the matter of recruitment as
all those who were not qualified on the cut off date of making of application,
would start claiming that subsequently they became qualified after declaration of
result of their examination and, therefore, they should have been given an
opportunity to take part in the selection. In that eventualities, the process of
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Signing time:
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selection will never be completed nor any selection would be finalised. The other
aspect is that the test has been laid down by the Apex Court that eligibilities are
to be examined only on the date of occurrence of certain events such as creation
of post or availability of vacancies. This being so, if the date of passing of the
examination is to relate back to the date of taking part in the examination, such a
pronouncement of law by the Apex Court would render meaningless. Even
otherwise, there would be no justification for prescribing a last date for
submission of the form. We are of the considered opinion that the eligibility
conditions are to be examined only and only on the last date of submission of the
form and not otherwise as has been laid down by the Apex Court in the case of
Rekha and Ashok Kumar (supra). In view of this, the submissions made by
learned counsel for the respondent No. 5 are liable to be rejected outrightly.
Accordingly, there is no hesitation in our mind to hold that the respondent No. 5
was not qualified or eligible to take part in the selection held for the appointment
on the post of Anganwadi Worker in the concerned area in the year 2007 as she
has not passed the qualifying examination upto the last date of submission of the
application form for appointment on the said post at the relevant time.
Therefore, in the considered view of this Court, the aspect as regards acquiring of
criteria after cut off date was a question which was required to be gone into by the
authorities concerned. The orders passed by the Collector as well as Commissioner
reflect that both the authorities did not mull over this polemical issue which was required
to be dealt with in order to adjudicate the controversy conclusively.
Thus, in view of the aforesaid, the order dated 23/11/2016 (Annexure P/7) passed
by the Collector and the order dated 28/09/2018 (Annexure P/1) passed by the
Commissioner are quashed. The matter is remitted back to the Collector, Jabalpur to
decide the petitioner's appeal afresh while taking into consideration the aforesaid analysis
after affording opportunity of hearing to all concerned including the petitioner and
respondent No.6.
The entire exercise shall be carried out within a period of 90 days from the date of
production of certified copy of the order passed today.
Accordingly, the petition stands disposed of.
(MANINDER S BHATTI)
JUDGE
Signature Not Verified
Signed by: ASTHA SEN
Signing time:
10/18/2022 6:51:33 PM
Astha
Signature Not Verified
Signed by: ASTHA SEN
Signing time:
10/18/2022 6:51:33 PM
