Ajay Pal Yadav vs The State Of Madhya Pradesh
2023 Latest Caselaw 6765 MP

                             1

      IN THE HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                          BEFORE
            HON'BLE SHRI JUSTICE ROHIT ARYA
                             &
     HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
             WRIT PETITION NO. 13027 OF 2021

BETWEEN:-

MONIIKA SHAKYA D/O SHRI LAXMAN PRASAD
SHAKYA, AGED 29 YEARS, OCCUPATION -
UNEMPLOYED, R/O P/2 HARIJAN THANA ROAD,
LASHKAR, GWALIOR
                                            ........PETITIONER

(BY SHRI PRASHANT SHARMA - ADVOCATE)

AND

1.    STATE OF MADHYA PRADESH, THROUGH
      PRINCIPAL SECRETARY, DEPARTMENT
      OF HOME, VALLABH BHAWAN, BHOPAL
      (MADHYA PRADESH)

2.    DIRECTOR   GENERAL OF      POLICE,
      POLICE   HEADQUARTERS,     BHOPAL
      (MADHYA PRADESH)

3.    DEPUTY INSPECTOR GENERAL OF JAIL,
      DEPARTMENT OF JAIL, JAIL HEAD
      OFFICE, BHOPAL (MADHYA PRADESH)

4.    PROFESSIONAL EXAMINATION BOARD
      THROUGH        ITS      DIRECTOR/
      CONTROLLER, CHAYAN BHAWAN, MAIN
      ROAD NO.1, CHINAR PARK EAST,
      BHOPAL (MADHYA PRADESH)

                                           ........RESPONDENTS

(SHRI M.P.S.RAGHUVANSHI - ADDITIONAL ADVOCATE GENERAL FOR
                                             2

RESPONDENT NOS. 1 TO 3/STATE AND SHRI PRAVEEN NEWASKAR -
ADVOCATE FOR RESPONDENT NO.4/PROFESSIONAL EXAMINATION
BOARD)


                    WRIT PETITION NO. 15964 OF 2022

BETWEEN:-

AJAY PAL YADAV S/O SHRI RAMJILAL YADAV,
AGED 26 YEARS, OCCUPATION STUDENT, R/O
VILLAGE JARENA JADID, POST RAMPUR,
KALNA, SABALGARH, MORENA (MADHYA
PRADESH)
                                                                  ........PETITIONER

(BY SHRI PRASHANT SHARMA - ADVOCATE)

AND

1.      STATE OF MADHYA PRADESH, THROUGH
        PRINCIPAL SECRETARY, DEPARTMENT
        OF HOME, VALLABH BHAWAN, BHOPAL
        (MADHYA PRADESH)

2.      DIRECTOR   GENERAL OF                    POLICE,
        POLICE   HEADQUARTERS,                   BHOPAL
        (MADHYA PRADESH)

3.      PROFESSIONAL EXAMINATION BOARD
        THROUGH        ITS      DIRECTOR/
        CONTROLLER, CHAYAN BHAWAN, MAIN
        ROAD NO.1, CHINAR PARK EAST,
        BHOPAL (MADHYA PRADESH)

                                                               ........RESPONDENTS

(SHRI M.P.S.RAGHUVANSHI - ADDITIONAL ADVOCATE GENERAL FOR
RESPONDENT NOS. 1 AND 2/STATE AND SHRI PRAVEEN NEWASKAR -
ADVOCATE FOR RESPONDENT NO.3/PROFESSIONA EXAMIONATION
BOARD)
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                       Reserved on            :        06/04/2023
                       Pronounced on :                 26/04/2023

       These petitions having been heard and reserved for judgment,
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coming on for pronouncement this day, Hon'ble Shri Justice Rohit Arya
pronounced the following:
                                 ORDER

Looking to the similitude of controversy involved, these writ petitions are being decided by this common order.

2. These petitions, under Article 226 of the Constitution of India, are directed against the action of the respondents in rejecting the candidature of the petitioners after they successfully qualified the written and physical examinations, at the time of document verification, purportedly on the ground that they did not possess live registration certificate of employment exchange on the date of submission of application form.

3. Facts giving rise to these writ petitions lie in narrow compass, elucidated infra:

(i) Petitioner Monika Shakya (in W.P. No.13027/2021) had applied for the post of Jail Constable (Jail Prahari) in pursuance of advertisement issued by the respondent/Professional Examination Board in the year 2020. She was having a valid registration certificate issued by the District Employment Exchange, Gwalior from 14/0/4/2017 till April, 2020. She appeared in first phase of the examination viz. written test on 11/12/2020 (Annexure P/3) and was declared qualified for the second phase vide result (Annexure P/3). Prior to being called for document verification, she again obtained a valid registration

certificate issued from District Employment Exchange, Gwalior on 12/07/2021 which is valid till July 2024 (Annexure P/8). She was called for second phase i.e. physical proficiency test, as well as, document verification by respondents vide letter dated 21/6/2021 (Annexure P/4) on 13/7/2021. Though she cleared the physical examination, but during document verification, has been rejected orally stating that her registration/enrollment under the M.P. Employment Exchange had expired.

(ii)Petitioner Ajay Pal Yadav (in W.P. No. 15964/2022) had applied for the post of Constable in pursuance of advertisement floated by respondent/Professional Examination Board for Constable Recruitment Examination, 2020. He was having a registration certificate issued by the District Employment Exchange, Morena valid from 30/10/2015 till October, 2018. Date of filling online application form was from 8/1/2021 till 22/1/2021, while the online written exams commenced from 6/3/2021. He qualified the written examination and prior to being called for document verification, again obtained a valid registration certificate issued from the District Employment Exchange, Gwalior on 6/5/2022, valid till May, 2025 (Annexure P/2). He was called for second phase i.e. physical proficiency test, as well as, document verification by the respondents on 8/6/2022 vide call letter (Annexure P/4). Though he cleared the physical examination, but at the time of document verification has been rejected orally stating that his registration/enrollment under the MP Exchange Board had expired.

3. The condition under the advertisements (clause 11) whereby sponsorship of employment exchange has been made mandatory, is challenged by the petitioners primarily on the ground that once the petitioners had applied and the competent Authority had entertained their applications permitting them to appear in the written and physical tests, it was not open for the respondents to take a U-turn on the technical ground of non availability of live registration certificate of Employment Exchange, that too after they were declared successful having qualified the tests. It is further submitted that the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 does not obligate an employer to make appointments through the agency of the Employment Exchanges. Far from it, section 4(4) of the Act, makes it explicit that the employer is under no obligation to recruit any person through the Employment Exchanges to fill in a vacancy merely because that vacancy has been notified under sections 4(1) and 4(2) of the Act. Apparently, the object of the Act is not to restrict, but to enlarge the field of choice so that the employer may choose the best and the most efficient. In the instant case, petitioners are meritorious candidates having been declared successful in written and physical tests. Besides, it is not a case where they were not sponsored by the Employment Exchanges at all. Both the petitioners were having the registration certificates, though the same could not be renewed owing to COVID-19 pandemic. However, just prior to physical proficiency test they had got it revived. Hence, State being a Model employer, trashing the candidature of the petitioners after they were declared successful in written and physical proficiency test on such technical ground, was totally uncalled for; against the tenets of fair play, equity and good

conscience, besides being violative of Article 16 of the Constitution. To buttress his submissions, learned counsel has placed reliance on decision of the Apex Court in the case of Union of India Vs. Pritilata Nanda ((2010)11 SCC 674).

It is further pointed out that during the pendency of W.P. No.13027 of 2021, final result of Jail Prahari has been declared in which petitioner Monika Shakya has been declared as fail owing to the fact that she was not having valid registration certificate. The same (Annexure P/11) is also subject matter of challenge in this petition.

4. Per contra learned counsel for the respondents submit that as per Circular dated 12/5/2017 (Annexure R/1) issued by the State Government, it is a mandatory condition for the candidates who are applying for Class III and Class IV posts to get themselves registered with the District Employment Exchange Board. That apart, the State of M.P. has also issued a gazette notification on 4/7/2019, whereby in recruitment process, condition of live registration in the employment exchange has been made mandatory. Since the petitioners had applied for Class III posts, therefore, such a condition was mentioned in the advertisements in compliance of aforesaid circular dated 12/5/2017. Admittedly, the petitioners were not having such live registration on the date of submission of documents, despite that an incorrect information was furnished by them in their application form as to validity of registration certificate. As such, their candidature was rejected at the time of document verification. It is further submitted that the reason assigned by the petitioners that the registration certificate could not be renewed owing to COVID-19 Pandemic is not tenable, inasmuch as the

entire process of registration with Employment Exchange Board is online and, therefore, such an excuse cannot be countenanced. Thus, in the prevailing facts and circumstances, no indulgence is warranted and the petitions are liable to be rejected.

5. Having heard learned counsel for the parties, we find substantial force in the arguments advanced by learned counsel for the petitioners. The condition embodied in the advertisement that the candidate should get her/his name sponsored by an employment exchange apparently stemming out from circular dated 12/5/2017 amended vide gazette notification dated 4/7/2019, cannot be equated with a mandatory provision incorporated in a statute. On the contrary, section 4(4) of the Act makes it abundantly clear that the employer is under no obligation to recruit any person through the employment exchanges to fill-in a vacancy merely because that vacancy has been notified under section 4(1) or 4(2) of the Act (Union of India Vs. N.Hargopal (1987)3 SCC 308, referred to). It is well settled that once the candidature of the applicants is accepted by the Authorities concerned and they are allowed to participate in the process of selection, it is not open to the Authorities to turn around and question their entitlement on the ground that their name had not been sponsored by an employment exchange. The Apex Court in the case of Pritilata Nanda (Supra), in similar situation, ruled as under:-

"21. We also agree with the High Court that once the candidature of the respondent was accepted by the concerned authorities and she was allowed to participate in the process of selection i.e., written test and viva voice, it was not open to them to turn around and question her entitlement to be considered for appointment as per her placement in the merit

list on the specious ground that her name had not been sponsored by the employment exchange. In our considered view, by denying appointment to the respondent despite her selection and placement in the merit list, the appellants violated her right to equality in the matter of employment guaranteed under Article 16 of the Constitution".

Thus, denial of appointment to the petitioners despite their selection and placement in merit list is clearly violative of their right to equality in the matter of employment guaranteed under Articles 14 and 16 of the Constitution, as the said purported reason for denial of appointment does not satisfy the twin test under Article 14 i.e. intelligible differentia having nexus with object sought to be achieved and is an affront to Article 14. In view of the above, alleged inaccuracy of application form in this behalf is of no consequence. Moreover, it cannot be lost sight of that petitioners were continuously sponsored by the employment exchanges and it was only for a brief intermediary period that the same could not be revived. Such lacuna cannot be amplified to outweigh the mandate of Articles 14 & 16.

6. In view of the aforesaid, the impugned action of the respondents cannot be sustained. The impugned order (Ann. P/11 in WP No.13027/2021) declaring the petitioner fail in second phase purportedly on the ground of non-availability of live registration certificate, is hereby set aside. Subject to verification due, other documents of the petitioners being found in order and petitioners having cleared the physical test(s), respondents are directed to appoint them from the date the person lower to them in merit list has been appointed, with all consequential benefits including notional fixation of salary

from that date and appropriate seniority. Needless to say that if any of the petitioners has been debarred from appearing in physical test(s) owing to non availability of live registration certificate, he/she shall be permitted to take such test(s) and consequential action shall follow.

The petitions stand allowed to the extent indicated above. A copy of this order be retained in the connected petition.

        (ROHIT ARYA)                              (SATYENDRA KUMAR SINGH)
           JUDGE                                          JUDGE

(and)

        ANAND
        SHRIVASTAV
        A
        2023.04.27
        13:39:46
        +05'30'