@JUDGMENTTAG-ORDER
S.K. Gangele, J.
The petitioners have filed this petition with regard to payment of salary from 1-8-2003 and also other reliefs in the interest of justice.
Petitioner Nos. 2 and 8 have been working as Shiksha Karmis Grade II and rests of the petitioner Nos. 1 to 8 have been working as Shiksha
Karmis Grade III. Municipal Council, Ganj Basoda, respondent No. 4 issued an advertisement dated 2-9-1998 with regard to appointments and
selection of Shiksha Karmis Grade I, II and III in the daily News Paper, Dainik Bhaskar, dated 10-9-1998. In pursuance to the aforesaid
advertisement the petitioners and other persons applied for appointment as Shiksha Karmis Grade II and III. As per the Rules, which were
applicable at that time, named as Madhya Pradesh Municipality Shiksha Karmi (Recruitment and Conditions of Service) Rules, 1998, hereinafter
called ''the Rules of 1998''. A select list was prepared and the persons were called for interview including the petitioners. Thereafter, the petitioners
were interviewed by the Selection Committee constituting three members of Education Committee and Chief Municipal Officer. The interview was
held on 8th and 9th April, 1999 and the Selection Committee prepared a merit list of the candidates and it was sent for approval to the Deputy
Director of Education, Vidisha and Block Education Officer, Vidisha. The Block Education Officer vide his letter dated 24-9-1999 approved the
merit list. Municipal Council decided to send the said select list for approval to the PIC. In the mean time elections of the Municipal Council were
declared and due to enforcement of the model code of conduct the selection list could not be approved and after the election of body of the
Municipal Council was constituted and the matter was placed before the Chairman on 1-1-2000. In the meanwhile the Government imposed a ban
on appointment of Shiksha Karmis. Finally, the Education Committee of the Municipal Council on 25-7-2000 approved the selection of the
petitioners and other Shiksha Karmis and sent the same to PIC. The PIC on 16-4-2001 approved the select list, thereafter, the Chief Municipal
Officer wrote to the Collector on 17-4-2001 with regard to the approval of the select list and vide order dated 23-4-2001 the Chief Municipal
Officer issued the appointment orders of the petitioners. It is mentioned in the order of appointment that the appointments have been made in
anticipation of the approval from the Government. A letter was also sent to the Government and Collector for approval. The Collector vide letter
dated 2-11-2002 addressed to Principal Secretary, Urban Administration recommended the case of the petitioners and other Shiksha Karmis with
regard to approval of appointments. The Secretary vide letter 3-9-2003 informed the Collector that there was no provision for approval of the
Government with regard to appointments of Shiksha Karmis and the local body of the Municipal Council was competent to appoint the Shiksha
Karmis. It appears that thereafter salary of the petitioners have not been paid by the Government on the ground that the appointments of the
petitioners were contrary to Rules, power and authority of the Municipal Council, hence the Municipal Council had to pay the salary to the
petitioners.
The Municipal Council - respondent No. 4 in its return stated that it selected and appointed the Shiksha Karmis as per the provisions of Rules of
1988 and after the appointment of the Shiksha Karmis they have been posted in various schools run by the Government under respondent No. 5,
District Education Officer and they have been working their. Subsequently, additional documents have been filed by the Municipal Council various
circulars of the State Government. As per the aforesaid circulars the Government has to pay the salary of Shiksha Karmis to the Municipal
Council. Hence, the respondent No. 5 stated that Government has to pay the salary to the petitioners.
The respondent Nos. 1, 3 and 5 in their separate return have submitted that respondent No. 4 issued the appointment orders without power and
authority and without approval of the State Government. The District Education Officer informed the Municipal Council vide letter dated 14-4-
2001 that as per the new Rules the appointments had to be made on the basis of new rules and there was a ban on appointments hence the
Municipal Council could not issue appointment orders on the basis of earlier selection. A copy of the new rules which were notified in Extra
Ordinary Gazette, dated 12th March, 2001 have also been filed named as ""M.P. Municipal Council School Education Contract Teachers
(Appointment and Conditions of Service) Rules, 2000"" hereinafter called as ""Rules of 2000"". The respondents have taken the stand that the
appointments are illegal, hence the State Government is not liable to pay the salary to the petitioners.
Earned Counsel for the petitioners has submitted that the petitioners have been appointed in accordance with the Recruitment Rules of 1998 by a
validly constituted Selection Committee. However, due to the elections appointment orders cannot be issued within time and subsequently they
have been issued, hence the appointments of the petitioners are as per law and they are entitled salary and other benefits. In support of his
contention earned Counsel for the petitioners relied upon the following judgments:
(1) Shiv Singh v. State of M.P. 1988 (I) MPWN 24;
(2) M.P. Electricity Board and Anr. v. Virendra Kumar Sharma 1998(1)JLJ 49;
(3) Rajendra Singh v. Slate of M.P. 2005(I) MPWN 109; and
(4) Secretary, A.P. Public Service Commission v. B. Swapna (2005) 4 SCC 154.
Contrary to this, earned Counsel for respondent Nos. 1,3 and 5 has submitted that the State Government is not responsible with regard to
payment of salary of the petitioners because the appointments are per se illegal, against the Rules of 2000. In support of his contention earned
Counsel relied upon the judgments of the Hon''ble Supreme Court in State of U.P. and Another Vs. Om Prakash and Others, , Union of India and
Ors. v. Narendra Nath Roy Choudhury (2003)(XII) SCC 49; State of West Bengal and Another Vs. Alpana Roy and Others, ; and National
Fertili SCC 493.
From the facts stated above, it is clear that the Municipal Council issued an advertisement on 10-9-1998 with regard to selection and
appointments of Shiksha Karmis Grade I, II and III. In pursuance to the aforesaid advertisement the petitioners applied for the post of Shiksha
Karmis Grade II and III and after selection by a Selection Committee their appointment orders have been issued. The advertisement for
appointment is dated 2-9-1998 and the Selection Committee conducted the interview on 8th and 9th of April, 1999 and submitted merit list for
approval to the Deputy Director of Education and Block Education Officer who on 24-9-1999 approved the list and the Municipal Council in its
resolution dated 21-10-1999 approved the appointment and sent for approval to PIC. However, because of the election of the Municipal Council
was declared in the meanwhile hence the approval could not be accorded by the PIC and thereafter a newly elected body of the Municipal
Council was constituted after the election and it approved the selection of the petitioners on 16-4-2001 and thereafter vide an order dated 23-4-
2001 the appointment orders of the petitioners have been issued by the Chief Municipal Officer, Ganj Basoda and they were posted in different
Government institutions run under the control of respondent No. 5, District Education Officer and since then the petitioners have been working on
their posts.
The State Government has framed the Recruitment Rules mentioned earlier named as Rules of 1998 in exercise of powers conferred to it by
Section 433 read with Section 58 of the Madhya Pradesh Municipal Corporation Act, 1956 and Section 355 read with Section 95 of the Madhya
Pradesh Municipalities Act, 1961. As per the aforesaid Rules the Municipal Council is the Appointing Authority with regard to Shiksha Karmis.
Rule 2(c) also defines ""committee"" with regard to selection and appointment or promotion of Shiksha Karmis as per Schedule II and IV. The
method of selection has been prescribed in Rule 5. Schedule II prescribes the constitution of the Selection Committee and minimum qualifications.
It is clear from the proceedings and the pleadings of the parties that the Selection Committee which selected the petitioners was constituted as per
the Rules of 1998 and there was no illegality or irregularities in the selection process. However, due to the elections of the Municipal Council the
list could not be approved and ultimately it was approved by the Municipal Council. As per the Recruitment Rules of 1998 there is no provisions
with regard to approval of appointments or selections by the Government after selection by the Committee. Rule 5 prescribes the method of
selection and recruitment and Rule 5(9)(i)(e) and (ii) prescribes preparation of selection list and Rule 5(10) prescribes appointment from the select
list and as per the aforesaid Rules the appointment shall be made in accordance with the select list. There is only rider in the rule that the post of
Shiksha Karmis have to be approved by the Government. In view of the aforesaid provisions, it cannot be said that the appointment of the
petitioners was illegal or contrary to Rules.
Much emphasis has been given by the leaned Counsel for the State on Rule 5(9)(i)(e) and (ii) with regard to period of waiting list. The Rule is as
under:
(ii) Select List of each category shall be prepared on the basis of the above assessment in order of merit and shall include 5 names or 20% names
whichever is more in the waiting list which shall be valid for nine months. The integrated selection list for appointment equal to the total number of
vacancies shall be prepared in such a manner that the name of the candidate securing highest marks shall be placed at the top and other names shall
be written in descending order, first equal to the number of vacancies of general category. The names of the candidates of reserved category
included therein shall not be counted against that reserved category. Thereafter names of the candidates of reserved categories shall be included in
descending order upto the total number of vacant posts in different categories. In addition 5 names or 20% names shall also be kept in the
integrated Waiting List following this criterion.
In my opinion the list of the petitioners cannot be said to be a waiting list because it is clear from the facts that in accordance with the aforesaid
Rules the final select list was prepared when it was approved by the PIC on 16-4-2001 and thereafter the order of appointment has been issued
on 23-4-2001. If there was any delay in finalizing the select list it was due to notification of the election of the Municipal Council. In these
circumstances the list cannot be held to be expired.
Another argument putforth by the learned Government Advocate in the return that the appointment of the petitioners were illegal because after the
enforcement of Rules of 2000 which came into force w.e.f. 12th March, 2001 the Municipal Council was not authorised to issue the order of
appointment of the petitioners who were selected in accordance with Rules of 1988 cannot be accepted because it is clear from the facts that the
Municipal Council appointed the petitioners in accordance with Rules of 1998 on the recommendations of a duly constituted committee in
accordance with the aforesaid Rules and that right cannot be taken away by subsequent change in Rules w.e.f. 12th March, 2001 in accordance of
Rules of 2000.
The Hon''ble Supreme Court in Secretary, A.P. Public Service Commission Vs. B. Swapna and Others, , has held as under with regard to affect
of change in Rules during the selection process:
The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by earned Counsel for
respondent No. 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria
cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g., minimum
percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said
percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is
because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless
there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is
expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. See P. Mahendran and others
Vs. State of Karnataka and others, , and Gopal Krushna Rath Vs. M.A.A. Baig (Dead) by Lrs. and Others, .
The Hon''ble Supreme in Secy. Deptt. of Home Secy. A.P. and Others Vs. B. Chinnam Naidu, , has held as under with regard to issuance of
appointment to a person who is selected:
The question whether he was a desirable person to be appointed in Government service was not the subject-matter of adjudication and the
Tribunal was not justified in recording any finding in that regard. Whether a person is fit to be appointed or not is a matter within the special domain
of the Government. For denying somebody appointment after he is selected, though he has no right to be appointed, has to be governed by some
statutory provisions. That was not the issue which was to be adjudicated in the present case. The only issue related to suppression of facts or
misdeclaration.
On the basis of the above discussion and following the principles of law laid down by Hon''ble the Supreme Court I hold that the appointments of
the petitioners are valid. The State Government has taken a responsibility to pay the salary to the Shiksha Karmis and the said salary has to be
reimbursed to the Municipal Council. Hence, the State Government is entitled to pay the salary to the petitioners.
Before parting with the case, it is unfortunate that in spite of the stay order passed by this Court on 9-11-2005 and the circulars of the
Government, the Government has not paid salary to the petitioners.
Consequently, the petition of the petitioners is allowed. The respondent Nos. 1, 2, 3 and 5 are hereby directed to pay the salary of the petitioners
and the Municipal Council. Respondent No. 4 shall distribute the salary to the petitioners immediately and in future also the respondents shall pay
the salary to the petitioners regularly.
Looking to the facts of the case and looking to the fact that in spile of the order of stay passed by this Court the respondent Nos. 1, 2, 3 and 5
have-not paid salary to the petitioners. In my opinion, the petitioners are entitled to get a cost of Rs. 10,000/- (Rupees Ten Thousand only), which
shall be payable by respondent Nos. 1 and 2. This order be complied with within a period of one month from the date of receipt of a certified
copy of the order.