--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 4643 / 2008 VISHAL MEDA S/O HENRI MEDA Vs. STATE OF MP & TWO OTHES * * * * * O R D E R ( 15/9/2011) The petitioner before this Court, who belongs to Scheduled Tribe, has filed this present writ petition being aggrieved by the letter dt. 19/11/07 and 14/8/08 by which the M P Public Service Commission has declined to extend the validity of the select list prepared for the post of Commercial Tax Officer. The contention of the petitioner is that an advertisement was issued by the M P Public Service Commission inviting applications for the post of Commercial Tax Officers under the drive to fill up the backlog vacancies belonging to Scheduled Tribe and Scheduled Caste and the petitioner appeared in the examination conducted by the M P Public Service --- 2 --- Commission. A select list was prepared by the M P Public Service Commission in respect of Civil Services Examination 2003, Backlog, on 10/11/05. The select list was forwarded to the State Government. Name of the petitioner's finds place at Serial No. 2 of the waiting list. The contention of the petitioner is that one person namely Mr. Abhay Singh Kharari who was in the main list was offered appointment to the post of Commercial Tax Officer. However, he has submitted his resignation to the State Government and therefore as the petitioner was in the waiting list, should have been offered appointment to the post of Commercial Tax Officer. Petitioner has further stated that the select list was prepared on 10/11/05 and it was valid for a period of 1 year in case of the main list and in case of the waiting list the validity was for a period of 1 year and 6 months. Grievance of the petitioner is that the select list expired on 10/11/06. However, a request was made by the respondent / State to the M P Public Service Commission to extend the validity of the select list for appointing one Mr. Prabhat Uike. The State Government vide letter dt. 19/11/2007 --- 3 --- requested the M P Public Service Commission to extend the validity of the select list upto 31/12/07 and the M P Public Service Commission has extended the validity of the select list (main) upto 29/2/08. Petitioner's grievance is that a similar request was made on behalf of the State Government which is also on record as Annexure P/6 dt. 14/3/08 to extend the validity of waiting list also as it was a case of recruiting people under the special drive to recruit SC / ST People and also keeping in view the fact that a vacancy was available, however, the request for extending the validity of waiting list was turned down by the M P Public Service Commission by passing the impugned order (Annexure P/4) dt. 15/2/08. Grievance of the petitioner is that the M P Public Service Commission being a constitutional body cannot be permitted to discriminate between identically placed persons and cannot be permitted to extend the validity of the select list as per their whims and fancies. The contention of the petitioner is that once the select list was extended in case of a person who was there in the main list, the entire select list should have been extended, meaning --- 4 --- thereby that the validity of waiting list should have also been extended by the M P Public Service Commission. A reply has been filed on behalf of the M P Public Service Commission and the stand of the M P Public Service Commission is that they have extended the validity of the select list (main) as in the case of Prabhat Uike there was a dispute in respect of his caste certificate, it was not verified by the competent authority and on account of non verification he was not able to join the post in question and therefore the Commission has extended the select list vide order dt. 22/5/07 and the validity was extended upto 30/5/07. The respondents have further stated that thereafter on the request of the State Government vide letter dt. 19/11/07 the validity of the select list was again extended by the M P Public Service Commission upto 30/4/2008 and an appointment order was issued in respect of Prabhat Uike on 15/4/08. Learned counsel for the respondent M P Public Service Commission has placed reliance upon the judgments delivered by the apex court in the case of State of Punjab Vs. Raghbir Chand Sharma reported in (AIR 2001 SC --- 5 --- 2900). Contention of the respondent is that in case of the petitioner the validity of the select list cannot be extended as one person in the main list has initially joined the post of Commercial Tax Officer and has later on resigned from the post and once the post has been filled up the question of filling up the same post by giving a chance to a person from the waiting list, does not arise. Learned counsel for the respondent M P Public Service Commission has prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. The matter is being disposed of at the admission stage itself with the consent of the parties. In the present case, an advertisement was issued by the M P Public Service Commission for filling up backlog vacancies in respect of SC / ST categories and an examination was held ie., MP Civil Services Examination 2003, Backlog Examination and for the post of Commercial Tax Officer a select list was prepared on 10/11/05. Petitioner's name finds place at Sl.No.2 of the waiting list. It is pertinent to note that a request was made by the State --- 6 --- Government for extending the select list in case of one Prabhat Uike and the M P Public Service Commission has extended the validity of the select list for issuance of an appointment order of Prabhat Uike thrice. The select list was first extended vide order dt. 22/5/07 for a period upto 30/5/07 and thereafter the M P Public Service Commission has extended the validity period upto 29/2/08 vide order dt. 15/2/08. The State Government has again requested the M P Public Service Commission to extend the validity of the select list (main list) and the M P Public Service Commission has accepted the request of the State Government by extending the validity of the main list upto 30/4/08 vide order dt. 1/4/08. For granting first extension the M P Public Service Commission has informed this Court that Prabhat Uike was not conferred with the benefit of appointment on account of non verification of his caste certificate. In respect of the second extension the M P Public Service Commission has assigned a reason that Prabhat Uike was not appointed on account of a departmental enquiry and he was exonerated on 11/10/07, hence the --- 7 --- validity of the select list was extended upto 29/2/08. In respect of the third extension, no reason has been assigned by the M P Public Service Commission in the additional affidavit and it has been stated that on account of the request of the State Government due to non compliance of the formalities in respect of issuing appointment order, the validity of the select was extended upto 30/4/08 vide order dt. 1/4/08. In the present case, it is pertinent to note that a similar request was made by the State of MP vide letter dt. 19/11/07 requesting the M P Public Service Commission to extend the validity of the waiting list also. However, the request was not accepted by the M P Public Service Commission and again a request was made by the State Government on 14/3/08. The last letter dt. 14/3/08, in para 2, 3 and 4 reads as under : “2- izdj.k esa mYys[kuh; gS fd MkW- [kjkjh ds R;kx&i= ls fjDr mDr in cSdykx ds rgr vuqlwfpr tutkfr izoxZ dk gS rFkk mls 'kklu funZs'kksa ds rkjrE; jkT; lsok ijh{kk ¼cSdykx½ }kjk fo'ks"k HkrhZ vfHk;ku ds rgr Hkjk x;k FkkA ,slh fLFkfr esa MkW [kjkjh ds R;kx i= ls fjDr gq;s mDr in dh iwfrZ ugha fd;s tkus ls vuqlwfpr tutkfr izoxZ ds ,d in dk cSdykx cuk jgsxk] ftldh iwfrZ izFkd ls fd;s tkus esa vR;kf/kd le; yxus dh laHkkouk gSA 3- vr% bl foHkkx ds lela[;d i= fnukad --- 8 --- 19-11-2007 dh dafMdk&4 esa Li"V dh xbZ oLrqfLFkfr ds ifjizs{; esa vkns'kkuqlkj] iqu% fuosnu gS fd MkW [kjkjh] okf.kfT;d dj vf/kdkjh ds R;kx i= ls fjDr gq;s vuqlwfpr tutkfr izoxZ ds mDr in dh iwfrZ gsrq vuqlwfpr tutkfr izoxZ dh izrh{kk lwph ds ljy dzekad 2 ij vafdr Jh fo'kky eSMk dh okf.kfT;d dj vf/kdkjh in ij fu;qfDr ds laca/kh dk;Zokgh fd;s tkus gsrq d`i;k vuqiwjd lwph dh oS/krk frfFk esa o`f) fd;s tkus laca/kh izLrko ij iquZfopkj dj Jh eSMk ds ewy vfHkys[k bl foHkkx dks Hkstus rFkk izrh{k lwph dh oS/krk vof/k esa o`f) fd;s tkus dk d"V djsaA 4- d`i;k izdj.k esa dh xbZ dk;Zokgh ls bl foHkkx dks 'kh?kzkfr'kh?kz voxr djkus dk d"V djsaA” The M P Public Service Commission inspite of a categoric stand by the State Government that the petitioner can be appointed on the post of Commercial Tax Officer as it is a case of filling up the backlog vacancies, the request of the State Government was turned down vide order dt. 24/4/08. This Court has carefully gone through the judgments relied upon by the learned counsel for the respondent M P Public Service Commission and in case of the State of Punjab Vs. Raghbir Chand Sharma reported in (AIR 2001 SC 2900), there was a circular in existence dt. 22/3/57 which provided for filling up of the vacancies from the select list on account of the fact that persons who already joined by virtue of the initial select list have left their jobs --- 9 --- and a limitation of 6 months was in existence in the aforesaid circular in respect of filling of such vacancies. Under those circumstances the apex court has held that other candidates in the penal do not have a legitimate right to claim appointment. The present case is having a distinguishable feature. The respondent M P Public Service Commission in case of one person who is from the same process of selection has extended the select list thrice. The M P Public Service Commission was kind enough in the case of Mr. Prabhat Uike to extend the validity of the select list thrice. The M P Public Service Commission was well aware of the judgments delivered by the apex court and they are certainly prior to issuance of order by the M P Public Service Commission extending the validity of the select list. The M P Public Service Commission being a constitutional body cannot be permitted to pick and choose and to pass orders at their own whims and fancies. This is a case where a tribal candidate is fighting for his legitimate right of appointment and the M P Public Service Commission inspite of the fact that they have extended the validity of the --- 10 --- select list in similar circumstances in the case of Mr. Prabhat Uike has turned down the request of the State Government in case of the petitioner for no cogent reason. Once the select list has been extended in the case of Mr. Prabhat Uike, in all fairness, keeping in view the circumstances of the present case, the same should have been extended in case of the petitioner as the process of recruitment is under the drive to fill up the backlog vacancies meant for Scheduled Caste and Scheduled Tribe candidates. Resultantly, the writ petition is allowed. The M P Public Service Commission is directed to pass necessary orders in the matter of grant of extension of select list enabling the State Government to issue appropriate appointment order in case the petitioner as he is entitled for the same in accordance with his placement in the merit list / waiting list. Needless to mention that in case such an appointment is issued by the State Government, the petitioner shall be entitled for all consequential benefits including notional seniority, notional fixation of salary, grant of increments. However, he shall not be entitled for --- 11 --- backwages. M P Public Service Commission shall pass necessary orders and shall also recommend name of the petitioner for appointment keeping in view the merit list prepared by the M P Public Service Commission. With the aforesaid this petition stands allowed. No order as to costs. (S. C. SHARMA) J U D G E KR