Girjesh Shrivastava
and Others ...Appellant(s) Vs State of M.P.
WITH CIVIL APPEAL
NO.9228-9230 OF 2010
(Arising out of SLP
(C) No.22223-22225/2004) WITH CIVIL APPEAL NO.9231 OF 2010 (Arising out of SLP
(C) No.24787/2004) WITH CIVIL APPEAL NO.9232-9233 OF 2010 (Arising out of SLP
(C) No.24788-24789/2004)
J U D G M E N T
GANGULY, J.
1.
Leave
is granted in all these Special Leave Petitions.
2.
These
appeals arise from the decision delivered on 06.08.2004 by the High Court of Madhya
Pradesh in Review Petitions 1071/2003, 1074/2003, and decision of the High Court
of Madhya Pradesh in WP(C) 63/2002 and WP (C) 1529/2001 dated 03.11.2003. The
Review Petitions were filed by those teachers who, though not impleaded in the writ
petitions, were affected by High Court's decision dated 3.11.2003.
3.
Appellants
are a group of Grade II and III school teachers working in Panchayat Schools as
Samvida Shala Shikshak (contractual teachers). They had been appointed under the
provisions of the Madhya Pradesh Panchayat Contractual Teachers (Conditions of Appointment
and Service) Rules, 2001 (hereinafter "2001 Rules"). These selection rules
which had come into force on 11.07.2001 were made in exercise of the powers
conferred under sub- section (1) of Section 95 read with sub- section (2) of
Section 70 of the Madhya Pradesh Panchayati Raj Avam Gram Swaraj Adhiniyam 1993
(Act 1 of 1994).
4.
Pursuant
to the provisions of the said rules, an advertisement was issued by the Zila
Panchayat Office, District Bhind, to initiate selection process for the appointments.
All the appellants had applied and were selected and consequently appointed as
Samvida Shala Shikshak.
5.
These
appointments however were challenged in two Public Interest Litigations being WP(C)
1529/2001 and WP(C) 63/2002, inter alia, on the ground that in contravention of
the 2001 Rules, no proper advertisement for reservation for ex-servicemen had
been made. It was further challenged as being held in contravention of para 5 (viii)
of the order passed by the State Government vide memo dated 11.7.2001, as members
of the selection committee had their near relatives appear as candidates for selection.
While WP (C) 1529/2001 challenged the appointments made by Janpad Panchayat Mehagaon,
WP (C) 63/2002 challenged the appointments made by Janpad Panchayat Raun. Both the
panchayats are within the district of Bhind, Madhya Pradesh.Rule 5 (4) (b) of
2001 Rules provides:
"For each category
of the vacant
posts, the
reservation shall be -
(i) xxx
(ii) xxx
(iii) 10% for ex-army
personnel;
(iv) Reservation shall
also be provided to any other category which is notified by the Government from
time to time.
6.
Para
5 (viii) of the memo dated 11.07.2001 provides: (5) Some provisions of the
Contractual Teachers (Appointment and Service Conditions) Rules 2001 are to be specifically
kept in mind, which are as follows:-
i.
xxx
ii.
xxx
iii.
xxx
iv.
xxx
v.
xxx
vi.
xxx
vii.
xxx
viii.
Prior
to the constitution of the interview board it will be ensured that the son/daughter
or real relatives of the Members of the Board are not participating in the interview.
It will be appropriate that an undertaking may be taken from the Members in
this behalf."
7.
Before
the High Court the petitions were heard mainly on the points mentioned above.
8.
With
respect to WP No. 1529/2001 the High Court allowed the writ petition and
ordered the cancellation of appointments, inter alia, on the grounds that
appointments were illegal as members of the selection committee allowed their
near relatives to appear in the selection process. It stated that on the basis
of an inquiry conducted by the District Collector, show-cause notices were
issued to three members of the selection committee asking them as to why did
their relatives appeared as candidates in the selection.
9.
The
High Court further held that in contravention of Rule 5 (4) (b) which mandated
10 per cent reservation for ex- servicemen, no proper advertisement had been
made so as to invite applications from ex-servicemen. The High Court noted that
the Respondent-State of Madhya Pradesh had accepted this mistake on its part.
On the question as to whether those who had already been appointed and were being
affected by the said order of quashing the appointments, were to be impleaded
or not, the Court held that in an earlier order dated 07.11.2001, it had stated
that the issuance of the appointment letters in the concerned matter was
subject to the outcome in the writ petition. Therefore the question of impalement
of those who were appointed did not arise anew.
10.
However,
in WP No. 63/2002, even though the High Court allowed the petition in view of contravention
of provision for 10 per cent reservation, it held in the writ petition, near relatives
of the members of the 7 selection committee did not appear for selection.
Hence, as against the decision in WP (C) 1529/2001, the Court in WP (c) 63/2002
did not strike down the selection on the basis of the presence of near relatives.
Instead it invalidated the selection only for being in violation of Rule 5 (4)
(b) which mandated a reservation of 10 per cent for ex-servicemen.
11.
Aggrieved
by the decision of the High Court some of the successful candidates, who are appellants
herein, and were not impleaded in either of the two writ petitions, filed Review
Petitions No. 1071/2003, 1074/2003 and 1117/2003 before the High Court. They pleaded
that the selection process was quashed in WP 1529/2001 and WP 63/2002, to their
great prejudice without impleading them to the proceedings. They further argued
whether the alleged improper recruitment of a handful of candidates had flawed
the entire selection is a matter to be considered by the High Court. They also argued
that in a service matter where express remedy is available, a Public Interest
Litigation is not maintainable.
12.
The
High Court in its order dated 06.08.2004 dismissed all the review petitions. While
upholding the impugned orders it said that having regard to the grave irregularity
in the selection process, the quashing of the entire selection process was just
and proper.
13.
In
these appeals it is contended that WP(C) 1529/2001 and WP (C) 63/2002 cannot be
called Public Interest petitions as there was an element of Personal Interest involved.
This is clear from the fact that these PILs had been filed with respect to only
two janpads, whereas the advertisement inviting applications for selection, and
the consequent selection process had been made in six janpads. Also, the
challenge to the advertisement was made as late as three months after the date
of its issuance.
14.
However,
the main argument by the appellants against entertaining WP (C) 1520/2001 and WP
(C) 63/2002 is on the ground that a PIL in a service matter is not maintainable.
This Court is of the opinion that there is considerable merit in that
contention.
15.
It
is common ground that dispute in this case is over selection and appointment which
is a service matter.
16.
In
the case of Dr. Duryodhan Sahu and others vs. Jitendra Kumar Mishra and others
(1998) 7 SCC 273, a three judge Bench of this Court held a PIL is not
maintainable in service matters. This Court, speaking through Srinivasan, J. explained
the purpose of administrative tribunals created under Article 323-A in the backdrop
of extraordinary jurisdiction of the High Court’s under Articles 226 and 227. This
Court held "if public interest litigations at the instance of strangers
are allowed to be entertained by the (Administrative) Tribunal, the very object
of speedy disposal of service matters would get defeated" (para 18). Same
reasoning applies here as a Public Interest Litigation has been filed when the
entire dispute relates to selection and appointment.
17.
In
B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees'
Association and others, reported in (2006) 11 SCC 731 (II), this Court held
that in service matters only the non-appointees can assail the legality of the appointment
procedure (See para 61, page 755 of the report).
18.
This
view was very strongly expressed by this Court in Dattaraj Nathuji Thaware v. State
of Maharashtra and others, reported in (2005) 1 SCC 590, by pointing out that despite
the decision in Duryodhan Sahu (supra), PILs in service matters `continue unabated'.
This Court opined that High Courts should `throw out' such petitions in view of
the decision in Duryodhan Sahu (supra) (Para 16, page 596).
19.
Same
principles have been reiterated in Ashok Kumar Pandey v. State of W.B., reported
in (2004) 3 SCC 349, at page 358 (Para 16).
20.
In
a recent decision of this Court delivered on 30.8.2010, in Hari Bansh Lal v. Sahodar
Prasad Mahto and others, (MANU/SC/9654/2010), it has been held that except in a
case for a writ of `Quo Warranto', PIL in a service matter is not maintainable
(See paras 6 and 7).
21.
The
next point urged by the appellants, that they had never been impleaded in the two
petitions, even as orders passed by the High Court had a direct effect on their
livelihood, also goes to the root of the matter as it violates the principle of
audi alteram partem.
22.
This
Court in Prabodh Verma and others vs. State of Uttar Pradesh and others,[(1984)
4 SCC 251 at p. 273] held, "A High Court ought not to decide a writ
petition under 13 Article 226 of the Constitution without the persons who would
be vitally affected by its judgment being before it as respondents...". Similarly
this Court in Ramarao and others vs. All India Backward Class Bank Employees Welfare
Association and others,[(2004) 2 SCC 76, at page 86]said, "...An order
issued against a person without impleading him as a party and thus, without giving
an opportunity of hearing must be held to be bad in law. The appellants herein,
keeping in view the fact that by reason of the impugned direction, the orders
of promotion effected in their favour had been directed to be withdrawn,
indisputably were necessary parties. In their absence, therefore, the writ petition
could not have been effectively adjudicated upon." Also in B. Ramanjini
and others v. State of Andhra Pradesh and others, [(2002)5 SCC 533 at pages
542-543, paragraph 19] where selection of certain teachers was challenged without
impleading them, this Court held, "Selection process had commenced long
back as early as in 1998 and it had been completed. The persons selected were
appointed pursuant to the selections made and had been performing their duties.
However, the selected candidates had not been impleaded as parties to the proceedings
either in their individual capacity or in any representative capacity. In that
view of the matter, the High Court ought not to have examined any of the questions
raised before it in the proceedings initiated before it. The writ petitions filed
by the respondents concerned ought to have been dismissed which are more or
less in the nature of a public interest litigation."
23.
The
High Court while dismissing the review petitions stated that in view of the
grave irregularity of allowing near relations to appear in the selection
process, the entire selection had been rightly set aside. This finding is a rather
sweeping one as factually it appears that in W.P. (C)No.63/2002 none of the members
of the selection committee allowed their near relatives to appear as
candidates. It is, therefore, important to note that the selection process had
been struck down on the ground of presence of near relatives in WP (C)
No.1529/2001 alone and not in WP (C)No.63/2002. Furthermore even in WP (C)No.1529/2001
an order dated 10/12/2001(i.e. prior to the dismissal of the review petition) was
made by the District Collector after conducting an inquiry that out of the
three alleged cases of relatives of the selectors being selected, two were not
`relatives' as defined under Section 40of the Madhya Pradesh Panchayati Raj
Act, 16 1993. One Jai Pal Singh who was found to be a `relative' of Layak Singh
Gurjar, a member of the District Panchayat, within the meaning of Section 40 of
the Act was interviewed, but was never selected. This has been certified by the
Chief Executive Officer of the District Panchayat.
24.
From
these facts it can be concluded that the alleged participation of near
relatives in the selection process was not such a factor as to vitiate the
entire selection process. Even if there were some illegal beneficiaries from
the selection process, they should have been weeded out instead of striking
down the entire selection process. In Charanjit Singh and others vs. Harinder Sharma
and others [(2002) 9 SCC 732] a similar situation had arisen. In that case, while
not approving the interference of the High Court in the selection process, this
Court held that merely because some of the candidates in the selection process happened
to be relatives of the members of the selection committee, it did not mean that
all the candidates were relatives of the members of the selection committee and
had been illegally selected. It was also held that since the petition was not
made by any of the candidates who had appeared in the selection process and was
instead filed as a Public Interest Litigation, it was improper for the High Court
to interfere in the matter.
25.
On
a more detailed analysis of this issue, in Union of India and others v. Rajesh P.
U., Puthuvalnikathu and another, [(2003) 7 SCC 285 at p. 290, paragraph 6],
this Court held that "In the light of the above and in the absence of any specific
or categorical finding supported by any concrete and relevant material that widespread
infirmities of an all pervasive nature, which could be really said to have
undermined the very process itself in its entirety or as a whole and it was
impossible to weed out the beneficiaries of one or other of irregularities, or
illegalities, if any, there was hardly any justification in law to deny
appointment to the other selected candidates whose selections were not found to
be, in any manner, vitiated for any one or other reasons. Applying an
unilaterally rigid and arbitrary standard to cancel the entirety of the selections
despite the firm and positive information that except 31 of such selected
candidates, no infirmity could be found with reference to others, is nothing
but total disregard of relevancies and allowing to be carried away by irrelevancies,
giving a complete go bye to contextual considerations throwing to winds the
principle of proportionality in going farther than what was strictly and reasonably
required to meet the situation. In short, the Competent Authority completely misdirected
itself in taking such an extreme and unreasonable decision of cancelling the
entire selections, wholly unwarranted and unnecessary even on the factual
situation found too, and totally in excess of the nature and gravity of what was
at stake, thereby virtually rendering such decision to be irrational".
26.
Coming
to the issue of selection and appointment of ex-servicemen as a reserved category,
from what has been placed before us, we understand that while in Mehagaon 5 ex-servicemen
had been appointed out of a total of 9 applicants, in Raun none had been so
appointed. As stated above, if at all there was an issue with respect to the reservation
policy of the ex-servicemen it ought to have been brought up as a service dispute
and not in a PIL. The High Court, with due respect, should have displayed a little
more restraint and balance before quashing a selection process in which the persons
selected had already put in 3 years of service.
27.
Furthermore
it should be noted that para 10 of the application form for the candidates stated
that if the applicant person was either a handicap or an ex-serviceman then he was
required to mention so in the application form and that a certificate to the
same effect from a competent authority should be enclosed. As noted earlier in
WP (C) No.1529/2001 as many as 9 ex-servicemen had applied, out of which 5 had been
selected and appointed in the reserved category. The rest 4 were not selected
in 21 the selection process. Therefore, it would be incorrect to say that the
advertisement was so made so as to prevent ex-servicemen from applying.
28.
More
importantly, in deciding these issues, the High Court should have been mindful
of the fact that an order for cancellation of appointment would render most of the
appellants unemployed. Most of them were earlier teaching in Non-formal education
centers, from where they had resigned to apply in response to the advertisement.
They had left their previous employment in view of the fact that for their
three year long teaching experiences, the interview process in the present selection
was awarding them grace marks of 25 per cent. It had also given them a
relaxation of 8 years with respect to their age. Now, if they lose their jobs
as a result of High Court's order, they would be effectively unemployed as they
cannot even revert to their earlier jobs in the Non-formal education centers, which
have been abolished since then. This would severely affect the economic security
of many families. Most of them are between the age group of 35-45 years, and
the prospects for them of finding another job are rather dim. Some of them were
in fact awaiting their salary rise at the time of quashing of their appointment
by the High Court.
29.
With
utmost respect to the High Court, we are constrained to observe that equities were
not properly balanced in the exercise of discretion by the High Court.
30.
For
the reasons aforesaid, the appeals are allowed. The impugned judgments of the
High Court are quashed. The selection proceedings are upheld.31. Parties are
left to bear their own costs.
.......................J.
(G.S. SINGHVI)
.......................J.
(ASOK KUMAR GANGULY)
New
Delhi
October
22, 2010
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