Madhya Pradesh High Court
Dinesh Malvi vs The State Of Madhya Pradesh on 18 August, 2023
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 18th OF AUGUST, 2023
WRIT PETITION No. 7299 of 2019
BETWEEN:-
DINESH MALVI S/O MOHAN SINGH MALVI VILLAGE BEKALYA P.S.
BAGH TEHSIL KUKSHI DISTT DHAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SIDDHARTH JAIN, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY
1. THROUGH PRINCIPAL SECRETARY HOME DEPARTMENT VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
SECRETARY M.P. PUBLIC SERVICE COMMISSION RESIDENCY AREA,
2.
DAILY COLLEGE ROAD, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 / STATE BY SHRI KRATIK MANDLOI, PANEL LAWYER)
(RESPONDENT NO.2 BY SHRI VINDHYAVASINI PRASAD KHARE,
ADVOCATE)
This petition coming on for admission this day, the court passed
the following:
ORDER
The petitioner has filed the present petition under Article 226 of
the Constitution of India challenging the action of respondent No.1, by
which appointment order has not been issued issued to him due to
expiry of validity period of waiting list i.e. 28.11.2018 as respondent
No.2 refused to extend the same.
02. The State Government through Madhya Pradesh Public Service
Commission (MPPSC) issued an advertisement for recruitment to the
post of Additional District Prosecution Officer (A.D.P.O.). The
petitioner participated in the selection process, and thereafter, the
selection list was issued on 17.05.2017. Name of the petitioner finds
place at Serial No.57 of the waiting list. Since four posts were fallen
vacant, therefore, the Government requested the MPPSC to send the
names from the waiting list for filling the vacant posts. Vide letter dated
25.10.2018, the Deputy Examination Controller of MPPSC sent the
names of eight candidates for their appointment on the post of A.D.P.O.
and requested to complete the formalities within time and sent an
information to the MPPSC.
03. Vide letter dated 30.10.2018, the Additional Secretary, Home
Department requested the Health Department to medically examine
these four selected candidates before expiry of the validity i.e.
28.11.2018. After due verification, report was sent by Divisional
Medical Board to the Home Secretary vide letter dated 15.11.2018.
Thereafter, the petitioner was waiting for issuance of appointment order.
Vide communication dated 21.12.2018 (Annexure-P/5), the Additional
Secretary, Home informed the MPPSC that validity period had been
expired on 28.11.2018 and requested for extension of validity period of
waiting list. Vide reply dated 28.01.2019, the MPPSC has shown
inability to extend the validity period. Hence, the petitioner approached
this Court by way of present petition seeking direction to issue
appropriate order.
04. After notice, respondent No.1 / State filed a reply by submitting
that after verification of documents and health status of the petitioner,
'Common Code Conduct' had been applied due to upcoming Legislative
Election, 2018, therefore, permission from M.P. Election Commission
was required. Before the permission could be received, the validity
period had expired. A request was sent to the MPPSC for extension of
the validity period, however, the same was declined. Hence, now no
appointment order can be issued.
05. Respondent No.2 / MPPSC has also filed a reply by submitting
that this petitioner has rendered infructuous because fresh advertisement
No.3/21 dated 07.06.2021 had been issued for filling up 92 post of
A.D.P.O., in which all vacant posts were included, therefore, the
petitioner cannot claim appointment as no post is available. It is further
submitted that there is no such provision for extension of validity period
selected list as well as waiting list. Hence, the petition is liable to be
dismissed. Shri Khare has placed reliance upon a judgment delivered in
the case of Raj Rishi Mehra & Others v/s The State of Punjab &
Another reported in AIR 2012 SC 3580, in which it has been held that
question whether the candidates, whose names are included in the
waiting list are entitled to be appointed against the unfilled posts as of a
right is no longer res integra and must be answered in negative. It has
further been submitted that now another advertisement in the year 2023
has been issued to fill the vacant posts.
06. Heard learned counsel for the parties at length and perused the
record.
07. The facts of the case as stated above are not in dispute. The only
issue which requires consideration is whether the petitioner is entitled to
get appointment to the post of A.D.P.O. due to expiry of validity period
of waiting list when entire formalities up to the documents as well as
health verification had been completed. The delay in issuance of
appointment order is not attributable to the petitioner. Admittedly, there
is no such allegation that there was any delay on the part of the
petitioner. All the formalities for issuance of appointment order had been
completed before 28.11.2018 as evident from the documents filed by the
petitioner and not disputed by the respondents. Before the appointment
order could be issued, 'Common Code Conduct' came into force and
respondent No.1 has sent the letter to the Election Commission seeking
approval for issuance of appointment order.
08. In the considered opinion of this Court, in the matter of
appointment through MPPSC, 'Common Code Conduct' would not
apply because entire exercise had been completed in respect of
appointment from merit list as well as from waiting list before the
applicability of 'Common Code Conduct'. The code applies in a policy
matter and not in case of selection or appointment through MPPSC. The
entire exercise had already been completed long back within the validity
period. The validity period expired because the case was referred to the
Election Commission for which petitioner cannot be put to loss.
09. So far as the objection raised by Shri Khare that the petitioner
cannot claim appointment after expiry of validity period. In this case,
the petitioner did not submit claim after expiry of validity of waiting list.
Four posts were fallen vacant and the State Government requested
MPPSC to send the names from the waiting list and the name of the
petitioner along with others for appointment was sent before expiry of
the validity period, therefore, the right had already been accrued in
favour of the petitioner as his name was sent by the MPPSC itself. The
documents were verified and medical test was conducted, therefore,
only appointment order was to be issued which could not be issued as
this matter was wrongly referred to the Election Commission. If the
competent authority fails to issue appointment order within the validity
period due to inaction or any reason, the appointment canno tbe denied
to the selected candidates. Looking to the peculiar facts and
circumstances of the case, judgment passed in the case of Raj Rishi
Mehra (supra) with due respect will not apply in this case. Let an
appointment order to the post of A.D.P.O. be issued in favour of the
petitioner forthwith.
With the aforesaid, Writ Petition stands allowed with a cost of
Rs.20,000/-.
(VIVEK RUSIA)
JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2023.08.21 11:55:51 +05'30'
