Smt. Sudha vs The State Of Madhya Pradesh
2023 Latest Caselaw 17877 MP

                               1


     IN THE HIGH COURT OF MADHYA PRADESH
                 A T J A BA LPU R
                         BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 27th OF OCTOBER, 2023
                 WRIT PETITION No. 2683 of 2013

BETWEEN:-
SMT.   SUDHA     W/O   SHRI
SANTRAM LODHI, AGED ABOUT
29 YEARS, VILL. GANJAR TEH.
VIJAYRAGHAVGARH,      DISTT.
KATNI (MADHYA PRADESH)
                                              .....PETITIONER
(BY SHRI SURENDRA MISHRA - ADVOCATE)

AND
1.    THE STATE OF MADHYA
      PRADESH TH:SECRETARY
      INTEGRATED WOMAN AND
      CHILD    DEVELOPMENT
      DEPARTMENT    VALLABH
      BHAWAN,BHOPAL
      (MADHYA PRADESH)
2.    ADDL.    COMMISSIONER
      JABALPUR DIV (MADHYA
      PRADESH)
3.    UPPER      COLLECTOR
      (MADHYA PRADESH)
4.    PROJECT       OFFICER
      INTEGRATED WOMEN AND
      CHILD    DEVELOPMENT
      PROJECT
      VIJAYRAGHAVGAR
      (MADHYA PRADESH)
5.    SMT. SAVITA W/O SHRI
      SANTOSH   LODHI  VILL.
      GANJAR TAH AND DI.
      (MADHYA PRADESH)
                                       2


   6.   SMT. GUDIYA W/O SHRI
        RAMESH KACHER VILL.
        GANJAR TAH AND DI.
        (MADHYA PRADESH)
                                                          .....RESPONDENTS
   (RESPONDENT NO.1 TO 4 BY SMT.SWATI A.GEORGE - DEPUTY GOVT. ADVOCATE)
   (RESPONDENT NO.5 BY SHRI RAKESH SINGH - ADVOCATE)

         This petition coming on for admission this day, the court passed the
   following:
                                     ORDER

1. This petition under Article 226 of the Constitution of India has been filed against the order dated 24.1.2013 passed by the Addl. Commissioner, Jabalpur Division Jabalpur in Appeal No.587/B-121/11-12 by which the appeal filed by the petitioner has been dismissed on the ground that since the marks scored by respondent no.5 in class V are more than that of the petitioner, therefore, she was rightly granted appointment on the post of Anganwadi Sahayika.

2. The facts necessary for disposal of the present petition in short are that an advertisement was issued for appointment on the post of Anganwadi Sahayika in Anganwadi Center, village Ganjar (Haraiya), Tahsil Vijayraghavgarh, District Katni. Apart from other candidates, the petitioner as well as respondent no.5 submitted their applications. A comparative chart was prepared and it was found that the petitioner as well as respondent no.5 had scored equal marks, i.e. 50 whereas another candidate namely Gudiya Kacher had scored 74.7 marks. The petitioner as well as respondent no.5 assailed the selection of Gudiya Kacher by filing two separate appeals. Appeal filed by the petitioner was allowed and after setting aside the selection of Gudiya it was directed that the petitioner may be granted order of appointment. Being aggrieved by order dated 26.7.2010 passed by Addl.

Collector, Seoni in Case No.75/appeal/B-121/2009-10, the respondent no.5 preferred an appeal before the Commissioner, which was registered as Appeal No.504/B-121/09-10 and by order dated 5.7.2011 the matter was remanded back with a direction to the Collector to decide the matter afresh after getting the duplicate mark-sheet of the respondent no.5 of class V verified. Thereafter, Addl. Collector, District Katni by order dated 5.6.2012 dismissed the appeal filed by the petitioner and allowed the appeal filed by the respondent no.5 and it was directed that the respondent no.5 be appointed on the post of Anganwadi Sahayika. Being aggrieved by order dated 5.6.2012 the petitioner preferred an appeal which was registered as Appeal No.587/B-121/2011-12 which has been dismissed by impugned order dated 24.1.2013 and the order passed by the Addl. Collector, Katni on 5.6.2012 has been affirmed.

3. Challenging the order passed by the authorities below it is submitted by counsel for the petitioner that as per comparative chart the petitioner as well as the respondent no.5 were awarded equal marks, i.e. 50. However by referring to column 6 of comparative chart, annexure P/2, it is submitted that the said column was pertaining to an information as to whether the aspirant is a Govt. employee or in the employment of Panchayat or any relative of the aspirant is directly connected with the selection process. Although against the name of petitioner, word 'no' is mentioned whereas against the name of respondent no.5, word 'yes' is mentioned. Thus, it is clear that the relatives of the respondent no.5 were directly involved in the selection process.

4. By referring to clause A-1(4) of the guidelines dated 10.7.2007 pertaining to the selection and appointment of Anganwadi Sahayika, it is submitted by counsel for the petitioner that the aspirant should not be a Govt. employee or should not be related to anybody who is directly concerned with the

selection process. Thus, it is submitted that after having mentioned 'yes' in column no.6, the respondents should not have considered the claim of the respondent no.5 because she was disqualified as per the provisions of clause A-1(4) of the guidelines dated 10.7.2007.

5. It is further submitted that when two candidates get equal marks then the age of the candidate would come into picture and a person who is older is to be ranked higher. It is further submitted that since the respondent no.5 had not filed the mark-sheet of her class V examination along with her application for recruitment to the post of Anganwadi Sahayika, therefore, the authorities below committed a material illegality by accepting the duplicate copy of the mark-sheet of class V at a later stage.

6. Per contra, it is submitted by counsel for the respondent no.5 that the question with regard to the mentioning of word 'yes' in column 6 of the comparative chart was never raised by the petitioner at any stage. Further, the petitioner has not given the details of the relatives of the person who were directly concerned with the selection process. It is further submitted that so far the reliance placed by the petitioner in clause A-2(Special) is concerned, the same is misconceived because it is meant for Anganwadi Worker only and there is no provision for Anganwadi Sahayika that a person who is older in age will be placed at a higher rank.

7. So far as the delayed acceptance of mark-sheet of class V of respondent no.5 is concerned, it is submitted that since the respondent no.5 had already passed her class V examination in the year 2001, i.e. much prior to the cut off date, therefore, the respondents did not commit any mistake by taking the mark-sheet of class V of respondent no.5 into consideration.

8. Heard the learned counsel for the parties.

9. So far as the question as to whether any relative of the petitioner was directly involved in the selection process is concerned, it is sufficient to mention here that although the petitioner has not disclosed the name of any such relative of respondent no.5 but the said fact is apparent from the comparative chart which has been filed as annexure P/2. Column 6 which was meant for information as to whether the aspirant is a Govt. Employee or in the employment of Corporation or any of his relative is directly concerned with the selection process, the word 'yes' is mentioned against the name of respondent no.5. This aspect was also specifically raised by the petitioner in her memo of appeal filed before the Addl. Commissioner. However, the Addl. Commissioner, Jabalpur Division Jabalpur has not considered the said aspect at all.

10.So far as the question that when two candidates have scored equal marks then what should be the criteria for selecting candidates is concerned, the authorities have given preference to the respondent no.5 only on the ground that she had scored 34.3% marks in class V examination whereas petitioner had scored 34% marks. Counsel for the respondent no.5 could not point out any provision from the guidelines to show that in such a situation the marks obtained by the candidates in class V will be a determining factor. When two candidates score equal marks then the candidate who is senior in age is to be ranked higher or otherwise the candidature is to be considered in the light of the rules/guidelines. In absence of any such guidelines in respect of the post of Anganwadi Sahayika, the authorities should not have taken into consideration the total number of marks obtained by the candidates in class V examination. According to the petitioner, if a candidate has scored upto 40% in class V then he was entitled for 30 marks and for every additional 2% of marks he was entitled for 1 additional mark. Under these

circumstances, the selection of respondent no.5 merely on the ground that she had scored 0.3% marks more than the petitioner in class V examination is without any basis.

11.So far as consideration of mark-sheet of class V of respondent no.5 is concerned, this Court is of the considered opinion that the respondents authorities did not commit any mistake by taking the mark-sheet of class V of respondent no.5 into consideration.

12.It is not the case of the petitioner that the respondent no.5 had passed her class V examination after the cutoff date. The respondent no.5 has filed a copy of the mark-sheet of class V according to which she had passed her class V examination in the year 2001 whereas the advertisement in question was issued in the year 2007.

13.In the light of judgment passed by the Supreme Court in the case of Ram Kumar Gijroya vs. Delhi Subordinate Services Selection Board and another reported in (2016) 4 SCC 754, Karn Singh Yadav vs. Govt. of NCT of Delhi and Others reported in 2020 SCC OnLine SC 1472 (two-Judges) and 2022 SCC OnLine SC 1341 (three- Judges), Charles K. Skaria and Others vs. Dr. C. Mathew and Others reported in (1980) 2 SCC 752, Dolly Chhanda vs. Chairman, JEE and Others reported in (2005) 9 SCC 779, Dheerender Singh Paliwal vs. Union Public Service Commission reported in (2017) 11 SCC 276, Alok Kumar Singh and Others vs. State of Uttar Pradesh and Others reported in (2018) 18 SCC 242 and Deepak Yadav and Others vs. Union Public Service Commission and Another reported in (2021) SCC OnLine SC 709 mere submission of the documents at a later stage would not make him ineligible. However, the law is that in case if the minimum qualification was acquired after the cutoff date or the last date of submission of application form then

such candidate will not be eligible. Since the respondent no.5 had already passed class V examination much prior to the advertisement and merely because her mark-sheet was filed at a later stage, this Court is of the considered opinion that no error was committed by the authorities by taking the mark-sheet of the respondent no.5 into consideration.

14.Considering the totality of the facts and circumstances of the case coupled with the fact that Addl. Commissioner Jabalpur Division Jabalpur did not consider the effect of word 'yes' mentioned against the name of respondent no.5 in column 6 of the comparative chart coupled with the fact that authorities have wrongly applied a wrong criteria for giving preference to the respondent no.5 over and above the petitioner, accordingly, the order dated 24/1/2013 passed by Addl. Commissioner, Jabalpur Division Jabalpur is hereby set aside. The matter is remanded back to the Addl. Commissioner Jabalpur Division Jabalpur on following issues :-

i) Whether any relative of the respondent no.5 had direct concern with the selection process or not and what would be its effect ?

ii) The Addl. Commissioner Jabalpur Division Jabalpur shall also ascertain the age of the petitioner as well as respondent no.5.

iii) After ascertaining the age, the candidate who is older in age will be placed at a higher rank for the purpose of appointment.

15.Let the entire exercise be completed within a period of four months from today. Parties are directed to appear before the Addl. Commissioner, Jabalpur Division Jabalpur on 21.11.2023.

16.With aforesaid observation, the petition is finally disposed of.

                                                             (G.S. AHLUWALIA)
 HEMANT SARAF                                                        JUDGE
 2023.10.31 19:22:09
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