Madhya Pradesh High Court
Hemant Parashar vs The State Of Madhya Pradesh on 1 May, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 1 st OF MAY, 2025
WRIT PETITION No. 381 of 2014
HEMANT PARASHAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Gaurav Mishra - Advocate for the petitioner.
Shri M.P.S.Raghuwanshi Senior Advocate with Shri
D.S.Raghuwanshi- Advocate for respondents No.3 and 4.
Shri S.S. Kushwaha - Government Advocate for the State.
Shri Shivendra Singh Raghuvanshi- Advocate for the respondent No.5.
ORDER
This petition under Article 226 of the Constitution of India has
been filed against order dated 08/01/2014 passed by Additional
Collector, Morena in Case No.18/2012-13/Appeal by which the appeal
filed by respondent No.5 was allowed and order of appointment of
petitioner on the post of Gram Rojgar Sahayak, Gram Panchayat Jaderu,
Janpad Panchayat Pahargarh, District Morena was set aside and the
matter was remanded back to reconsider the application afresh.
2. The facts necessary for disposal of the present petition in short
are that an advertisement was issued for appointment of Gram Rojgar
Sahayak, Gram Panchayat Jaderu. As per advertisement, last date for
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submission of application form was 01/07/2012. Various persons
including the petitioner and respondent No.5 submitted their
applications. Tentative merit list was prepared and respondent No.5 was
placed on serial No.2 and petitioner was placed at serial No.3. The person
who was placed at serial No.1 was not found eligible. Petitioner also
raised an objection alleging that respondent No.5 is not the resident of
village Jaderu whereas as per the advertisement, the candidate has to be
local resident and relied upon the voter list to show that he is not the
local resident of area. The objection filed by petitioner was sustained and
respondent No.5 was declared disqualified on the ground that he is not
resident of local area. Since, petitioner was the most meritorious
candidate amongst candidates who were found eligible, accordingly, by
order dated 22/12/2012, he was appointed as Gram Rojgar Sahayak,
Gram Panchayat Jaderu, District Morena.
3. Being aggrieved by said order, respondent No.5 preferred an
appeal, which was registered as Case No.18/2012-13-Appeal. Alongwith
the memo of appeal, respondent No.5 filed a copy of voter ID card issued
in his favour on 23/07/2012 to show that he was the local resident of
area.
4. Additional Collector by impugned order dated 08/01/2014
observed that since, the voter ID card was issued in favour of respondent
No.5 on 23/07/2012, therefore, it is clear that the name of respondent
No.5 was already included in voter list much prior to advertisement.
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Thus, merely because respondent No.5 had filed copy of voter ID card
after 22 days of last date for submission of application form, the said
document cannot be ignored and accordingly, it was held that the
selection committee had not considered the application in proper
prospective. Accordingly, the order of appointment dated 22/12/2012
was set aside and the matter was remanded back to Gram Panchayat
Jaderu to reconsider the applications filed for appointment to the post of
Gram Rojgar Sahayak, Gram Panchayat Jaderu.
5. Challenging the order passed by Additional Collector, it is
submitted by counsel for petitioner that Additional Collector has passed
the order on surmises and conjectures. Petitioner has filed a copy of voter
list of Morena to show that the name of respondent No.5 was never
recorded in the voter list and, therefore, the Additional Collector, Morena
committed a material illegality by drawing an inference that the name of
respondent No.5 must have been recorded in the voter list prior to
issuance of voter ID card.
6. Per contra, it is submitted by counsel for respondent No.5 that it
is true that in the voter list issued on 01/01/2012, which has been filed by
petitioner as Annexure P-6, name of respondent No.5 is not mentioned. It
is submitted that after the voter list is published, the process for revision
of voter list continues for the entire year. After the respondent No.5 made
an application to BLO for inclusion of his name in the voter list, then his
name was included in the voter list and accordingly, voter ID card was
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issued on 23/07/2012 and thus, it is clear that the name of respondent
No.5 was already included in the voter list much prior to the last date of
submission of application form. It is further submitted that at the time of
joining, the successful candidate was also required to submit certificate
of local residence and, therefore, even if the name of respondent No.5
was not recorded in the voter list, still on the strength of certificate of
local residence, it can be said that respondent No.5 was the local resident
of the area.
7. Heard the learned counsel for parties.
8. Admitted fact is that the voter list, which was published on
05/01/2012 did not contain the name of respondent No.5. The voter list is
to be prepared as per the provisions of Rules 9 to 15(A) of M.P.
Panchayat Nirvachan Niyam, 1995 (in short, Niyam, 1995). A draft voter
list would be prepared and the same shall be published for inviting claims
and objections. The claims and objections are required to be submitted
by aggrieved person. As per Rule 11 of Niyam, 1995. The aforesaid
claims and objections are to be decided by Registration Officer after
holding such summary enquiry into claims and objections and the voter
list so amended by Registration Officer shall be final voter list subject to
decision in appeal. Thus, it is clear that as soon as voter list is issued
under Rule 12 of Niyam, 1995, it would be treated as the final voter list.
Furthermore, Rule 14 of Niyam, 1995 provides that voter list referred in
Sub-Rule 4 and Rule 12 of Niyam, 1995 shall remain in force until
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revised in accordance with Sub-Rule 2 or Sub-Rule 3 of Rule 12 of
Niyam, 1995. As per Rule 14(2) every such list shall be liable to be
continual revision by reference to first day of January of year in which it
is so revised. Rule 15 of Niyam, 1995 is a crucial one which says subject
to provisions of Rule 15-A of Niyam, 1995, no correction in any entry of
inclusion or deletion of any name shall be made in the voter list after its
finalization under Rule 12 of Niyam, 1995. Provided that clerical or
technical or printing error or omission apparent on the face of record
regarding voter list may be corrected by Registration Officer at any time
before last date and time fixed for making nomination under Rule 28 of
Niyam, 1995. Thus, it is clear that after voter list is finalized, no
correction in any entry of inclusion or deletion of any name shall be
made in the voter list.
9. In the present case, the voter list was published on 05/01/2012
and the voter ID card was issued on 23/07/2012. Admittedly, the name of
respondent No.5 was not included in the voter list, which was issued on
05/01/2012. Although, it is the submission of counsel for respondent
No.5 that after he made an application for inclusion of his name in the
voter list, his name was included in the voter list and voter ID card was
issued but that submission made by counsel for respondent No.5 is
contrary to Rule 9 to 15(A) Niyam, 1995. Accordingly, counsel for
respondent No.5 was directed to point out that if the name of a person is
not included in the voter list, then under what circumstance, voter ID
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card can be issued? This Court could not get any answer from the
respondent No.5.
10. Be that whatever it may be.
11. One thing is clear that on 05/01/2012, the name of respondent
No.5 was not included in the voter list. There is nothing on record to
show that on what date respondent No.5 filed an application for inclusion
of his name in the voter list. There is nothing on the record to show that
by whose order, the name of respondent No.5 was included in the voter
list and under what provision of law. There is nothing on record to show
that under what circumstance, the voter ID card was issued and whether
it could have been validly issued or not? The Additional Collector in the
impugned order has proceeded on surmises and conjectures. He has
treated the voter ID card, which was issued on 23/07/2012 as document,
which was issued in accordance with law. This court has already
considered the fact that there is nothing on record to suggest that on what
basis, the voter ID card was issued in favour of respondent No.5.
12. The Additional Collector, Morena has proceeded on
conjunctures and surmises. According to him, since, voter ID card was
issued on 23/07/2012, therefore, it was presumed that the name of
respondent No.5 must have been included in the voter list much prior
thereto. However, the Additional Collector, Morena did not refer to any
provisions of law which empowers the Registration Officer to include the
name of respondent No.5 prior to publication of final voter list.
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13. This court has already referred to various provisions of Niyam,
1995. Whenever a draft voter list is issued, general public has a right to
raise an objection with regard to inclusion of name of any person and
inclusion of that person would be subject to outcome of objection.
14. As already pointed in the present case, there is nothing on
record that name of respondent No.5 was ever included in the voter list
prior to last date for submission of application form. There is nothing on
record to show that the name of respondent No.5 was included in the
voter list on the orders passed by Registration Officer. Although, counsel
for respondent No.5 submitted that name of person would automatically
get included in the voter list as soon as he makes an application to BLO
but counsel for respondent No.5 could not justify his submission by
referring to any provision of law. As per Rule 12 of Niyam, 1995 the
final voter list has to be prepared by Registration Officer after deciding
the claims and objections. Thus, it is clear that voter ID card was issued
without there being any basis for the same as name of respondent No.5
was not included in the voter list by that time.
15. Under these circumstances, this Court is of considered opinion
that the Additional Collector, Morena committed a material illegality by
drawing an inference that since, voter ID card was issued on 23/07/2012,
therefore, it has to be presumed that the name of respondent No.5 was
already included in voter list much prior to last date of submission of
application form. Accordingly, the said finding is hereby set aside.
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16. Even otherwise so far as the voter ID card produced by
respondent No.5 is concerned, undisputedly, it was issued on 23/07/2012
i.e. subsequent to last date for submission of application form.
17. It is well established principle of law that where the cut off date
is not mentioned, then last date for submission of application form would
assume importance and aspirant must have qualification on the last date
of submission of application form. It is equally true that if the person was
already having qualification but he produced the document at a later
stage, then such document can be considered and it cannot be rejected
only on the ground that although, it was already in existence much prior
to the last date for submission of application form, but it was produced at
a later stage. However, in the present case, the voter ID card of
respondent No.5 came into existence on 23/07/2012 itself. Thus, on the
last date of submission of application form i.e. 01/07/2012 respondent
No.5 was not having any document in his favour to show that he was the
local resident of area.
18. So far as the surmises and conjectures of Additional Collector,
Morena that the name of respondent No.5 must have been in the voter list
much prior to last date of submission of application form is concerned,
the same has already been dealt with by this Court in the previous
paragraph and it has been found that surmises and conjectures of
Additional Collector, Morena were not correct.
19. It is next contented by counsel for respondent No.5 that
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requirement of voter list as well as condition that person should be
resident of local area as mentioned in advertisement is ultra virus and,
therefore, the Collector did not commit any mistake by remanding the
matter back to the selection committee and relied upon the judgment
passed by this court in the case of Sarita Bai Patel Vs. Draupati Bai and
Others reported in (2019) 3 MPLJ 421.
20. In reply, it is submitted by counsel for petitioner that
requirement of local resident was specifically mentioned in the
advertisement and it was mandatory requirement. The Co-ordinate Bench
of this Court by judgment dated 04/09/2015 passed in
W.P.No.13761/2013 (Shivam Upadhyay Vs. State of M.P.) has held that
where the requirement of local resident is mandatory, then non-holding
the said qualification would make the candidate ineligible to get selected.
21. Heard the learned counsel for the parties.
22. This is undisputed fact that the requirement of local residence
was made mandatory as per advertisement and petitioner participated in
the recruitment process without any protest.
23. Now, the only question for consideration is as to whether a
person after having participated in the recruitment process and after
getting disqualified on unsuccessful can challenge the terms and
conditions of advertisement or not?
24. The question no more res integra.
25. The Supreme Court in the case of Ashok Kumar v. State of Bihar
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reported in (2017) 4 SCC 357 has held as under:-
12. The appellants participated in the fresh process of selection. If
the appellants were aggrieved by the decision to hold a fresh
process, they did not espouse their remedy. Instead, they
participated in the fresh process of selection and it was only upon
being unsuccessful that they challenged the result in the writ
petition. This was clearly not open to the appellants. The principle
of estoppel would operate.
13. The law on the subject has been crystallised in several
decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala
Shukla [Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6
SCC 127 : 2002 SCC (L&S) 830] , this Court laid down the
principle that when a candidate appears at an examination without
objection and is subsequently found to be not successful, a
challenge to the process is precluded. The question of entertaining
a petition challenging an examination would not arise where a
candidate has appeared and participated. He or she cannot
subsequently turn around and contend that the process was unfair
or that there was a lacuna therein, merely because the result is not
palatable. In Union of India v. S. Vinodh Kumar [Union of
India v. S. Vinodh Kumar , (2007) 8 SCC 100 : (2007) 2 SCC
(L&S) 792] , this Court held that : (SCC p. 107, para 18)
"18. It is also well settled that those candidates who had
taken part in the selection process knowing fully well
the procedure laid down therein were not entitled to
question the same. (See Munindra Kumar v. Rajiv
Govil [Munindra Kumar v. Rajiv Govil, (1991) 3 SCC
368 : 1991 SCC (L&S) 1052] and Rashmi
Mishra v. M.P. Public Service Commission [Rashmi
Mishra v. M.P. Public Service Commission , (2006) 12
SCC 724 : (2007) 2 SCC (L&S) 345] .)"
14. The same view was reiterated in Amlan Jyoti Borooah [Amlan
Jyoti Borooah v. State of Assam , (2009) 3 SCC 227 : (2009) 1
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SCC (L&S) 627] wherein it was held to be well settled that the
candidates who have taken part in a selection process knowing
fully well the procedure laid down therein are not entitled to
question it upon being declared to be unsuccessful.
15. In Manish Kumar Shahi v. State of Bihar [Manish Kumar
Shahi v. State of Bihar , (2010) 12 SCC 576 : (2011) 1 SCC (L&S)
256] , the same principle was reiterated in the following
observations : (SCC p. 584, para 16)
"16. We also agree with the High Court [ Manish Kumar
Shahi v. State of Bihar , 2008 SCC OnLine Pat 321 :
(2009) 4 SLR 272] that after having taken part in the
process of selection knowing fully well that more than
19% marks have been earmarked for viva voce test, the
petitioner is not entitled to challenge the criteria or
process of selection. Surely, if the petitioner's name had
appeared in the merit list, he would not have even
dreamed of challenging the selection. The petitioner
invoked jurisdiction of the High Court under Article
226 of the Constitution of India only after he found that
his name does not figure in the merit list prepared by
the Commission. This conduct of the petitioner clearly
disentitles him from questioning the selection and the
High Court did not commit any error by refusing to
entertain the writ petition. Reference in this connection
may be made to the judgments in Madan Lal v. State of
J&K [Madan Lal v. State of J&K , (1995) 3 SCC 486 :
1995 SCC (L&S) 712] , Marripati Nagaraja v. State of
A.P. [Marripati Nagaraja v. State of A.P. , (2007) 11
SCC 522 : (2008) 1 SCC (L&S) 68] , Dhananjay
Malik v. State of Uttaranchal [Dhananjay Malik v. State
of Uttaranchal, (2008) 4 SCC 171 : (2008) 1 SCC
(L&S) 1005 : (2008) 3 PLJR 271] , Amlan Jyoti
Borooah v. State of Assam [Amlan Jyoti
Borooah v. State of Assam , (2009) 3 SCC 227 : (2009)
1 SCC (L&S) 627] and K.A. Nagamani v. Indian
Airlines [K.A. Nagamani v. Indian Airlines , (2009) 5
SCC 515 : (2009) 2 SCC (L&S) 57] ."
16. In Vijendra Kumar Verma v. Public Service
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Commission [Vijendra Kumar Verma v. Public Service
Commission, (2011) 1 SCC 150 : (2011) 1 SCC (L&S) 21] ,
candidates who had participated in the selection process were
aware that they were required to possess certain specific
qualifications in computer operations. The appellants had appeared
in the selection process and after participating in the interview
sought to challenge the selection process as being without
jurisdiction. This was held to be impermissible.
17. In Ramesh Chandra Shah v. Anil Joshi [Ramesh Chandra
Shah v. Anil Joshi, (2013) 11 SCC 309 : (2011) 3 SCC (L&S)
129] , candidates who were competing for the post of
Physiotherapist in the State of Uttarakhand participated in a
written examination held in pursuance of an advertisement. This
Court held that if they had cleared the test, the respondents would
not have raised any objection to the selection process or to the
methodology adopted. Having taken a chance of selection, it was
held that the respondents were disentitled to seek relief under
Article 226 and would be deemed to have waived their right to
challenge the advertisement or the procedure of selection. This
Court held that : (SCC p. 318, para 18)
"18. It is settled law that a person who consciously takes
part in the process of selection cannot, thereafter, turn
around and question the method of selection and its
outcome."
18. In Chandigarh Admn. v. Jasmine Kaur [Chandigarh
Admn. v. Jasmine Kaur, (2014) 10 SCC 521 : 6 SCEC 745] , it
was held that a candidate who takes a calculated risk or chance by
subjecting himself or herself to the selection process cannot turn
around and complain that the process of selection was unfair after
knowing of his or her non-selection. In Pradeep Kumar
Rai v. Dinesh Kumar Pandey [Pradeep Kumar Rai v. Dinesh
Kumar Pandey, (2015) 11 SCC 493 : (2015) 3 SCC (L&S) 274] ,
this Court held that : (SCC p. 500, para 17)
"17. Moreover, we would concur with the Division
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Bench on one more point that the appellants had
participated in the process of interview and not
challenged it till the results were declared. There was a
gap of almost four months between the interview and
declaration of result. However, the appellants did not
challenge it at that time. This, it appears that only when
the appellants found themselves to be unsuccessful,
they challenged the interview. This cannot be allowed.
The candidates cannot approbate and reprobate at the
same time. Either the candidates should not have
participated in the interview and challenged the
procedure or they should have challenged immediately
after the interviews were conducted."
This principle has been reiterated in a recent judgment
i n Madras Institute of Development Studies v. K.
Sivasubramaniyan [Madras Institute of Development
Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454 :
(2016) 1 SCC (L&S) 164 : 7 SCEC 462] .
26. Thus, it is clear that whether the condition of local residence
was rightly incorporated in the advertisement or not cannot be considered
at the instance of respondent No.5 who had participated in the
recruitment process without any protest.
27. Considering the totality of the facts and circumstances of the
case, this Court is of considered opinion that respondent No.5 has failed
to prove that he was local resident of Gram Panchayat Jaderu.
28. No other arguments is advanced by any of the parties.
29. Considering the totality of the facts and circumstances of the
case, it is held that respondent No.5 was not local resident of area on the
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last date of submission of application form and, therefore, his
candidature was rightly rejected by selection committee and petitioner,
who was next meritorious aspirant, was rightly appointed as Gram Rojgar
Sahayak, Gram Panchayat Jaderu, Janpad Panchayat Pahadgarh, District
Morena.
30. Accordingly, the order dated 08/01/2014 passed by Additional
Collector Morena in case No.18/2012-12/Appeal is hereby quashed.
Petitioner is already working on the post by virtue of interim order dated
17/01/2014. The appointment of petitioner has already been upheld,
therefore, he shall continue to function as Gram Rojgar Sahayak, Gram
Panchayat Jaderu, Janpad Panchayat Pahadgarh, District Morena.
31. Petition succeeds and is hereby allowed.
(G. S. AHLUWALIA)
JUDGE
PjS/-
