Smt. Chandrawati Sahu vs State of Chhattisgarh and Others

Prashant Kumar Mishra, J.—The petitioner has challenged the action of the respondent Municipality, i.e., Nagar Panchayat Pendra Road who has not considered the name of the petitioner for selection to the post of Shiksha Karmi Grade-I (Economics) for which the petitioner had applied in pursuance of the advertisement issued by the said Municipality on 29-6-2011 vide Annexure P-1. According to the petitioner, she is fully eligible and satisfies all the requirements for being considered for selection and is otherwise meritorious, yet her candidature has been ignored and the respondent Municipality is proceeding ahead with the selection.

Admittedly, as reflected in the advertisement, the subject recruitment is conducted under the provisions of the Chhattisgarh Nagarpalika Shiksha Karmi (Recruitment and Conditions of Service) Rules, 2008 (for short "the Rules, 2008"). In the said Rules, the word "Act" means the Chhattisgarh Municipal Corporation Act, 1956 and the Chhattisgarh Municipality Act, 1961. Rule 13 thereof makes a provision regarding filing of appeal to provide that any order passed under this Rule shall be appealable under the provisions of the Act. Since the present is a case of recruitment of a Nagar Panchayat, the same is governed under the Chhattisgarh Municipality Act, 1961 (for short "the Act of 1961").

Under the Act of 1961, provision regarding appeal is contained in Section 308. Thus, on reading Rule 13 of the Rules, 2008 together with Section 308 of the Act of 1961, the appellate remedy appears to be available to the petitioner.

The only issue to be considered is when the claim of the petitioner is ignored and no express order in this regard has been passed by the concerned respondent, whether still remedy of appeal is available to the petitioner.

While considering the question concerning the recruitment of Shiksha Karmis under the M.P. Panchayat Raj Adhiniyam, the Division Bench of the High Court in the matter of Arti Bhatnagar (Smt.) and Others Vs. State of M.P. and Others, , while interpreting the provisions contained in Rule 12 of the M.P. Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997 and the provisions of the M.P. Panchayats (Appeal and Revision) Rules, 1995 has held in Paras 40, 41 and 42 of the judgment thus:--

The remedy of appeal provided under Rule 12 of the M.P. Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, 1997 cannot be rendered illusory. But such an appeal lies only against the order passed by any authority specified in Rule 3 of the said rules. The decision of the Selection Committee rejecting a particular candidate by not including his name in the select list required to be prepared adhering to the procedure and the manner regulating the assessment as contemplated under Rule 5 (9) of the Rules does amount to an order as contemplated under Rule 5 of the M.P. Panchayats (Appeal and Revision) Rules, 1995 and the Selection Committee, in view of the nature of the statutory obligations cast upon it, has to be taken to fall within the ambit of "authority" as contemplated therein. In the circumstances, even the Appointing Authority standing authorised to challenge the select list if it finds that the select list has not been prepared in accordance with the statutory provisions or is otherwise vitiated in law.

Any person aggrieved by the rejection of his candidature by the Selection Committee and non inclusion of his name with select list can also invoke the revisory jurisdiction contemplated under Rule of the Rules on any point of law but not on facts. The revisory jurisdiction however cannot be exercised in a case where the order sought to be impugned is appealable under the Act, and if the aggrieved person has a right of appeal, he cannot be permitted to bypass the remedy of appeal.

In the present case, the select list prepared and published by the ''Selection Committee'' has not been made appealable, although it necessarily amounts to an order rejecting the claim of the applicants other than those whose names are brought on the list. In the circumstances, the Collector was competent to exercise his revisory jurisdiction contemplated under Rule 5 (1) of the M.P. Panchayats (Appeal and Revision) Rules, 1995 and submissions to the contrary are not at all acceptable. But the question which still remains to be considered is as to whether the Collector could pass the impugned order without affording any opportunity of hearing to the persons, whose names had earlier been brought on the select list but later on while preparing the revised select list on a reassessment their names were omitted from the said select list with the consequence that their right to get an appointment on the strength of the earlier select list stood negatived by operation of law.

In the present case also, non inclusion of the name of a candidate and preparation/publication of the select list has not been made appealable as no express order has been passed regarding non consideration of a person who has moved an application, as the assessment is made on the strength of merit and every candidate who is not included in the list is not supposed to be informed in writing that his name has not been considered because he is less meritorious or for any other technical reason. However, as has been held in the case of Arti Bhatnagar and others (supra), preparation of select list and non inclusion of name of a person necessarily amounts to an order rejecting the claim of such individual. It has also been held therein that remedy of appeal provided under the Rules cannot be rendered illusory. In view of the above, this Court is of the opinion that non consideration of the name of the petitioner is appealable under Rule 13 of the Rules, 2008 read with Section 308 of the Act of 1961 and as a consequent, there being an alternative remedy available to the petitioner, the instant writ petition is not maintainable. Accordingly, it is dismissed as such. The petitioner would be at liberty to prefer and prosecute an appeal before the Appellate Authority provided under the Act of 1961.