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Judgment
This petition, under Article 226 of Constitution of India, has been filed seeking following relief (s):-
“ (1) That, the impugned order dated 31.03.2018 (Annexure P-1) may kindly be quashed/set aside.
(2)That, any other suitable writ order or direction for doing judtice in the matter may kindly be issued. Cost may kindly be awarded”
Learned counsel for the petitioner submitted that the petitioner is presently working as an Anganwadi Karyakarta at Anganwadi Centre, Bichiya, Gram Panchayat Bichiya, Tehsil Nateran, District Vidisha. Prior to her appointment, respondent No. 5 was working on the said post. However, on account of negligence in discharge of her duties and continuous absence from the Anganwadi Centre, respondent No. 5 was issued repeated show-cause notices and warnings. As her explanation was found unsatisfactory, her services were discontinued vide order dated 16.11.2015.
It is submitted that, pursuant to the vacancy so created, a fresh selection process was initiated vide advertisement dated 16.02.2016, in which both the petitioner and respondent No. 5 participated. The petitioner secured the highest marks and was placed first in the merit list, whereas respondent No. 5 secured the eighth position. The petitioner was accordingly appointed as Anganwadi Karyakarta vide order dated 21.07.2016. During the pendency of the appeal preferred by respondent No. 5 against her discontinuation, her application seeking stay of the selection process was also rejected on 09.03.2016, and thereafter her appeal was dismissed by the Additional Collector vide order dated 15.06.2016.
Learned counsel further submitted that respondent No. 5 preferred a second appeal before the Additional Commissioner, Bhopal, but suppressed the material fact that she had participated in the fresh selection process and that the petitioner had already been selected and appointed. It is further submitted that the petitioner, being a necessary party, was not impleaded in the said proceedings, nor was any opportunity of hearing afforded to her. Ignoring these material facts, the Additional Commissioner allowed the appeal vide the impugned order dated 31.03.2018 and restored the services of respondent No. 5.
It is submitted that the impugned order is illegal, arbitrary, without jurisdiction and unsustainable in law. Respondent No. 5, having participated in the fresh selection process, had waived her right to challenge her discontinuation. Since the petitioner was selected on merit and the selection process had attained finality, restoration of respondent No. 5 was wholly unwarranted. The impugned order is, therefore, arbitrary, perverse, violative of Articles 14, 16 and 21 of the Constitution of India, and contrary to the principles of natural justice.
Per contra, learned counsel for the respondent/State submitted that respondent No. 5 was discontinued from the post of Anganwadi Karyakarta due to complaints regarding her absence and non-performance of duties. Her discontinuation order was initially affirmed by the Additional Collector, Vidisha; however, the second appeal preferred by respondent No. 5 was allowed by the Additional Commissioner, Bhopal vide order dated 31.03.2018. It is submitted that the said order is legal and justified, and therefore, the present petition is liable to be dismissed.
On the other hand, learned counsel for respondent No. 5 submitted that the petitioner has no locus to challenge the impugned order dated 31.03.2018, as her appointment was only consequential to the discontinuation of respondent No. 5 and was in the nature of a stop-gap arrangement. It is submitted that the order of discontinuation of respondent No. 5 was passed without following the principles of natural justice and was rightly set aside by the learned Additional Commissioner, Bhopal. It is further submitted that once the order of discontinuation is set aside, the petitioner has no right to continue on the post. Therefore, the present petition is devoid of merit and deserves to be dismissed.
Heard learned counsel for the parties and perused the record.
Petitioner who happens to be a subsequent appointee (as Anganwadi Sahayika) is taking exception to the proceedings of respondents, whereby earlier incumbent (respondent no.5 herein) is directed to be reinstated and services of appellant stands cancelled.
Once the earlier incumbent (respondent no.5 herein) was terminated and termination was challenged by the respondent no.5, first before Collector and, thereafter, before Commissioner, it means process was under way and impliedly appointment of petitioner was subject to final outcome of said litigation initiated at the instance of respondent no.5. This aspect was discussed in detail by the Division Bench of this Court in case of R.P. No.380/2012 (Jhunilal Yadav vs. State of M.P. {2014 SCC Online MP 3951}) dated 16.04.2014 in which Division Bench has held as under:-
"It is the case of the applicant now in the application that the applicant was appointed as a Panchayat Karmi based on an advertisement and recruitment process conducted by the Panchayat in the year 2001 and as the applicant was working in the panchayat, the order passed for reinstating Smt. Vijay Laxmi Mishra has the result of removing the applicant from service and as this has been done without hearing him, the action is unsustainable.
Shri Atulanand Awasthy, learned counsel appearing for respondent No. 5 refuted the aforesaid and pointed out that services of Smt. was terminated in the year 2000 and after her termination the applicant was appointed in a vacancy that arose due to termination of Smt. Vijay Laxmi Mishra. It is said that termination of the original employee namely Smt. Vijay Laxmi Mishra having been found to be unsustainable, applicant has to make room as the applicant's appointment was on a vacancy which was created after termination of respondent Smt. Vijay Laxmi Mishra. Accordingly, it is submitted by him that no error has been committed, applicant is not entitled for any hearing and no case for review is made out.
We find much force and substance in the objection raised by Shri Atulanand Awasthy. Smt. Vijay Laxmi Mishra was working as Panchayat Karmi/Panchayat Secretary and in the year 2000 her services were terminated. After terminating her services, in a vacany resultantly caused applicant herein was appointed but once the termination of Smt. Vijay Laxmi is quashed she is to be re-appointed as a Panchayat Karmi, the applicant cannot resist that reinstatement on the ground that applicant has been appointed. Applicant having been appointed in a vacant post created after termination of Smt. Vijay Laxmi cannot have any grievance in the matter of reinstatement of Smt. Vijay Laxmi after her termination is quashed.
In the facts and circumstances as are detailed herein above, merely on the ground that applicant was not impleaded in the original writ petition and he was not heard in the matter, we see no reason to review/recall the order. If the applicant has any grievance for continuing him in service in any other Panchayat, he may take up the matter with the competent authority and it would be fore the competent authority to consider the same. On the basis of consideration made herein above, we see no reason to interfere. There is no error apparent on the face of record warranting review/recall of the order."
The Supreme Court in case of M.S. Mudhol (Dr.) v. S.D. Halegkar, (1993) 3 SCC 591 has held as under:
6.Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1st respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be inequitous to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same.
7.Whatever may be the reasons which were responsible for the non-discovery of the want of qualifications of the 1st respondent for a long time, the fact remains that the court was moved in the matter after a long lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for over a long period of 9 years when the court was moved and today about 13 years have elapsed. The infraction of the statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deem it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present case or not, and further whether mere laches would disentitle the petitioners to such a writ.
Since respondent No.5 was pursuing litigation and matter was pending before different authorities for consideration, therefore, natural consequence of the litigation if goes in favor of respondent No.5 by way of her reinstatement, then petitioner being subsequent appointee has to give way.
However, considering the fact that petitioner has been continuing in service since the year 2018 and more than eight years have elapsed from the date of selection, it would be inadvisable to disturb petitioner from her post at this late stage, particularly when she was not at fault when her selection was made. In the appointment letter as well as in the advertisement by which petitioner got selected/appointed, there is no mention of pending litigation. Therefore, this Court is of the considered opinion that her appointment ought not to be disturbed at this belated stage, particularly when equities have accrued in her favour by virtue of long continuation in service. The principles laid down by the Hon’ble Supreme Court in M.S. Mudhol (supra) are fully applicable in the present case.
Accordingly, the present petition is allowed in the following terms:
The respondents are directed to accommodate the petitioner against an available vacant post. In the event no such vacant post is available, the respondents shall create an appropriate post in a nearby Anganwadi Centre, for accommodating the petitioner.
The respondent No.5 shall be reinstated forthwith in service with all consequential service benefits. However, the respondent No.5 shall not be entitled to back wages for the intervening period on the principle of "no work, no pay."
The aforesaid exercise shall be completed by the respondents within a period of three (03) months from the date of receipt of a certified copy of this order.