DHARMENDRA SINGH Vs. COMMISSIONER

JUDGEMENT

(1.) CHALLENGING the order dated 31-1-2011 (Annexurc P-1) passed by the Commissioner; order dated 28-3-2011 (Annexure P-8) passed by the Commissioner; and the order dated 21-3-2011 (Annexure P-7) passed by the Collector in the matter of cancellation of appointment of petitioner on the post of Panchayat Karmi, this writ petition has been filed.

(2.) VARIOUS facts that are relevant for deciding the present case are not correctly reflected in the writ petition or in the reply filed by the respondents. That being so, on the basis of the material available on record, the facts indicate that the Panchayat in question namely-Gram Panchayat of Village Kamta, Tehsil Jaitpur under Janpad Panchayat Budhar, District Shahdol issued an advertisement on 17-3-2007, seeking application from willing candidates to submit their candidature for appointment to the post of Panchayat Karmi. Records indicate that in pursuance to the advertisement issued, about 15 candidates submitted their candidature of which 13 were found eligible for appointment. As the appointment in question was to be done in accordance to the Scheme that was in force as per the circular dated 12-9-1995 and as the policy with regard to merit criteria being given due weightage was not in force at that point of time when the recruitment process took place, it seems that the Gram Panchayat met, passed a resolution on 29-5-2007, and decided to appoint respondent No. 5, by majority. Respondent No. 5 received 9 votes against the petitioner, who received 7 votes. Copy of this resolution dated 29-5-2007 is Annexure R-5/2. However, without cancelling this resolution, the Gram Panchayat again met on 7-7-2007, reconsidered the earlier resolution and on the basis of the merit qualification passed a second resolution on 7-7-2007 and prepared a merit list, in which petitioner and another person were shown at Serial Nos. 1 and 2. However, the Gram Panchayat again met on 21-7-2007, reconsidered the earlier resolution dated 7-7-2007, amended the same criteria and passed a new resolution (Annexure R-5/5) on 21-7-2007 and appointed the petitioner. Being aggrieved by this resolution, respondent No. 5 filed an appeal, as appointment order was issued in favour of the petitioner on 26-8-2007. The appeal was filed before the Prescribed Authority - the Sub Divisional Officer, Jaitpur. This was dismissed vide Annexure P-9 on 10-1-2008. Being aggrieved thereof, respondent No. 5 filed Writ Petition No. 1885/2008 before this Court and in the said writ petition, vide order dated 20-2-2008 (Annexure P-10), the following order was passed :-

(3.) ON the contrary, respondents have resisted the aforesaid claim and according to respondent No. 5 petitioner was over-age and was not entitled to participate in the selection procedure as per the advertisement the minimum age limit prescribed was 18 years and the maximum age limit prescribed was 33 years and as petitioner was 36 years of age on the date of the advertisement, he was ineligible for appointment. It is argued by Shri S.S. Bisen that merely because in the scheme dated 12-9-1995, only the minimum age is given and no upper age limit is given that does not mean that the Panchayat cannot prescribed any upper age limit. Referring to Clause 3.3 of the Scheme dated 12-9-1995, Shri Bisen argued that in the absence of any upper age limit being fixed, the Panchayat is well within its right to prescribe an upper age limit and once the Panchayat has prescribed an upper age limit, the petitioner is ineligible and, therefore, he has no locus standi to challenge the selection process. That apart, Shri Bisen argued that when the appointment made is prior to 13-8-2007, when the policy for appointment on merit came into force for the first time, and when the scheme applicable at the time of appointment was by casting of vote and by majority, the action taken by the Panchayat in appointing the respondent is proper and the same docs not warrant any interference.