Madhya Pradesh High CourtTriveni Pandey vs The State Of Madhya Pradesh on 16 March, 2021Author:Vishal DhagatBench:Vishal Dhagat1                                WP-8770-2020\n                            The High Court Of Madhya Pradesh\n                                       WP-8770-2020\n                                  (TRIVENI PANDEY Vs THE STATE OF MADHYA PRADESH AND OTHERS)\n\n\n                      Jabalpur, Dated : 16-03-2021\n                                  Shri Siddharth Gulatee, learned counsel for the petitioner.\n\n                                  Shri Anuj Shrivastava, learned Panel Lawyer for the respondentnos. 1 to 3/State.Shri Anurag Kumar Singh, learned counsel for the respondent\n                          no.4.Petitioner has filed this present writ petition challenging the order\n                          dated 11.5.2020 contained in Annexure P/7. By the impugned order\n                          dated 11.5.2020, Additional Commissioner, Shahdol has allowed the\n                          appeal preferred by the respondent no.4 namely Smt. Arti Singh. Appeal\n                          was allowed on the ground that respondent no.4 was not made a party\n                          before the Collector, Anuppur and opportunity of hearing was not\n                          granted to respondent no.4. Order of Collector was set aside and the\n                          matter was remanded back before the Collector to hear it afresh after\n                          making respondent no.4 a party in appeal.Counsel appearing for the petitioner has challenged the impugned\n                          order passed by Additional Commissioner on the ground that\n                          respondent no.4, who was no. 2 in the merit list was granted\n                          appointment vide order dated 11.5.017. Said order of appointment was\n                          conditional and same was subjected to final decision which will be\n                          passed in Appeal No. 53/2017 pending before the Collector. Since\n                          Collector has allowed the appeal filed by the petitioner and petitioner\n                          had secured 71.5 marks, therefore, she is entitled to get appointment.\n                          Order of Additional Commissioner suffers from error as appointment of\n                          respondent no.4 was precarious. Counsel for the petitioner relied on the\n                          judgment reported in 2004 (10) SCC 162-Vithal and others Vs. State\n                          of Karnataka and others. He relied on para 10 of the judgment which\nSignature Not\n SAN\nVerified                  is quoted below:-Digitally signed byARVIND KUMARDUBEYDate: 2021.03.1912:59:43 IST2                                  WP-8770-2020\n                                   "10. We have already made it clear that the High Court's reading of the\n                           clarification was entirely incorrect. Indeed, it is not in dispute that each of the\n                           persons who have got the benefit of the second notification was appointed during\n                           the pendency of the appeal before the High Court and all of them had given\n                           undertakings in terms of the interim order passed by the High Court. They,\n                           therefore, knew that their appointments were       precarious and subject to the\n\n                           outcome of the appeal. The decision in the appeal having gone against them, they\n                           are bound by the undertaking given to the Court and cannot now contend\n\n                           otherwise."In the aforesaid judgment Apex Court held that candidates were bound\n                      by their undertaking given to the Court and they were bound by decision in\n                      appeal and cannot contend otherwise. On said basis, counsel for the\n                      petitioner prayed for setting aside the order passed by the Additional\n                      Commissioner and allowing writ petition as appointment of respondent no.4\n                      was made subject to final outcome of appeal.Counsel appearing for the respondent no.4 submitted that respondent\n                      no.4 was no. 2 in the waiting list. She was appointed vide order dated\n                      11.5.2017 as Up-Aganwadi Karyakarta. Before Collector, respondent no.4\n                      was not a party. Since interest of respondent no.4 would be directly hit by\n                      the order of Collector, therefore, respondent no.4 was necessary party.\n                      Order of Collector was passed behind her back, therefore, Additional\n                      Commissioner has rightly remanded the matter to Collector to hear it afresh\n                      after impleading respondent no.4 as party. No fault or error could be found\n                      in the order of Additional Commissioner, therefore, writ petition may be\n                      dismissed.Heard counsel for the petitioner as well as counsel for the respondents.\n                            In case of Vithal and others (supra), an undertaking was given by the\n                      candidates therein that they will be bound by final outcome of the order\n                      passed in appeal. In view of said undertaking, candidates could not contend\n                      contrary to the order passed by the High Court. In the present case, petitioner\n                      has not given any undertaking that she will be bound by outcome of the order\nSignature\n SAN      Not\nVerifiedDigitally signed byARVIND KUMARDUBEYDate: 2021.03.1912:59:43 IST3                              WP-8770-2020\n                      passed by the Collector.       However, order of appointment of respondent\n                      no.4 in point no.7 clearly stipulates that appointment of respondent no.4 shall\n                      be subject to final decision which may be passed in Appeal No. 53/2017.\n                      Respondent no.4 was aware of order dated 11.5.2017 and also condition\n                      no.7 in the said order. She joined on the post of Up Aganwadi Karyakarta\n                      accepting all the conditions mentioned in appointment order dated 11.5.2017.\n                      Despite being aware of condition no.7, respondent no.4 did not file any\n                      application to become party in appeal nor          challenge the condition no.7\n                      imposed upon her in the appointment order dated 11.5.2017. Since she has\n                      accepted condition no.7, therefore, her appointment is subject to outcome of\n                      final decision in the Appeal No. 53/2017. When order in appeal is passed and\n\n                      petitioner has been granted benefit of some extra marks and she came at serial\n                      no.1 in the merit list then respondent no.4 cannot contend that she was not a\n                      party in appeal before the Collector and order is not binding on her. She\n                      accepted condition no.7 in the appointment order and never raised any\n                      grievance against it. Respondent no.4 got 65.25 marks. She did not challenge\n                      the marks granted to her in the provisional list and said marks have become\n                      final.    Petitioner has got 71.5 marks and was more meritorious. Even if\n                      opportunity of hearing is granted to respondent no.4, same will not have any\n                      effect and which will be an empty formality as respondent no.4 has not\n                      challenged her rank in provisional list and she has also not challenged total\n                      number of marks granted to her in the provisional list. Petitioner is more\n                      meritorious candidate than respondent no.4 and further respondent no.4 is\n                      bound by condition no.7 in the appointment order dated 11.5.2017.In view of the same, petitioner succeeds in the writ petition and order\n                      of Additional Commissioner dated 11.5.2020 is hereby quashed. Order\n                      passed by the Collector shall be implemented by the Authorities and\n                      petitioner may be given appointment on the post of Up-Aganwadi Karyakarta\n                      at Mini Aganwadi Kendra Dongariyatola Gram Panchayat, Bargawan.In view of the aforesaid, writ petition stands disposed off.Signature\n SAN      Not\nVerifiedDigitally signed byARVIND KUMARDUBEYDate: 2021.03.1912:59:43 IST4           WP-8770-2020\n                                    (VISHAL DHAGAT)\n                                         JUDGE\n                      DUBEY/-\n\n\n\n\nSignature\n SAN      Not\nVerifiedDigitally signed byARVIND KUMARDUBEYDate: 2021.03.1912:59:43 IST