WP-14059-2011 (BISAN LAL NAVRETI Vs THE STATE OF MADHYA PRADESH) 07-09-2011 Shri Aseem Dixit, learned counsel for for the petitioner. Shri Punit Shroti, learned Panel Lawyer for the respondent no.1 to 3. None present for the respondent no.4 though represented by Shri Akhilesh Singh, Advocate. None present for the respondent no.6, though represented by Shri R.L. Gupta, Advocate. By the consent of the parties, the case is finally heard. Invoking the jurisdiction under Article 226, Constitution of India, petitioner has filed this petition seeking quashment of order dated 21/09/2010 (Annexure P-8) passed by the respondent no.2 and to issue writ in thenature of mandamus to direct the respondents to restore the secretarial power of the petitioner. On perusal of the facts of this case, it is not in disptue that post of Secretary, Gram Panchayat Naryawali, Janpad Panchayat Rahatgarh District Sagar was vacant to which the process of selection was adopted as per Annexure P-1. Merit list was filed as Annexure P-2 wherein name of the petitioner is at Serial No.2 and respondent no.6 (Praveen Kumar Jain) at Serial No.9. As par chart prepared vide Annexure P-2, it is clear that petitioner is the candidate of merit, along with one person namely Laxmikant who placed in merit list at Serial No.1, but because he was appointed at some other place, however not joined the post of Secretary, Gram Panchayat Naryawali. The respondents ignoring the merit position of petitioner placed at Serial No.2 in the merit list, appointed respondent no.3 on the basis of the instruction/order of the Chief Executive Officer dated 18/03/2008, who is less meritorious. It is the contention of petitioner that selection has not been challenged in this case, it is merely action of not offering appointment to petitioner though found place at serial no.1 of the waiting list while respondent no.6 was much below in merit appointed. The CEO (respondent no.4) filed the return interalia contending that order in favour of the respondent no.6 was passed out from the candidates of merit in the select list, therefore, the order impugned do not suffer from any perversity and illegality. The order of the CEO was assailed by the petitioner by filing an appeal before the Collector, District Sagar (Respondent no.3), who passed the order dated 16/06/2008 (Annexure P-5) allowing the appeal of the petitioner and directions were also issued to appoint petitioner as per his merit and seniority. Against the order of the Collector, the revision was preferred before the Commissioner, Sagar Division (Respondent no.2), which was allowed by the impugned order dated 21/09/2010 merely on the technical ground that against the order of the CEO an appeal lies to the SDO and not to the Collector, therefore the order passed by the Collector is without jurisdiction. Learned counsel for the petitioner contends that petitioner being candidate of merit found place at Serial No.2 (1st in waiting list), however on availability of the vacant seat due to non-joining of Laxmikant (candidate 1st in merit list) appointment ought to be offered to the petitioner, but in place of appointing him directions were issued by the CEO to appoint respondent no.6, who found place at Serial No.9 in the merit list, adopting pick and chose in arbitrary exercise of the power. In view of the aforesaid without touching the techanicality urged that the order of the Commissioner upholding the appointment of respondent no.6 may be set aside. After hearing learned counsel for the parties and on perusal of the facts of this case, it is not in dispute that post of Panchayat Karmi, Gram Panchayat Naryawali, Janpad Panchayat Rahatgarh District Sagar was vacant and required to be filled up. The process of selection was adopted after calling applications from various candidates. After selection, merit list (Annexure P-2) was prepared and petitioner found place at Serial No. 2, while respondent no.6 at Serial No.9. Petitioner secured 73.6% marks while respondent no.9 has secured 56.8% marks. As 1st candidate in merit list has not joined the duties of Panchayat Karmi, however the candidates of waiting list should be offered such appointment, but ignoring the same the candidate placed much below in merit list has been appointed under the directions of the Chief Executive Officer. On filing appeal Collector, District Sagar has considered the fact that candidate of merit cannot be ignored, however the direction issued by the CEO was set aside and also directed that petitioner be appointed on the post of Panchayat Karmi and he be declared as Secretary and quashed the order of the appointment of respondent no.6. The said order of Collector was set aside by the Revisional court on technical ground without touching merit of the case. It is noted here that in case where selection ought to be made as per merit and said merit list has not been challenged and disputed by the respondent no.6 then ignoring it granting appointment to the respondent no.6 is not permissible. It is further observed that if candidate below in merit has been appointed ignoring the merit then in such situation the techanicality should not be applied by the Revisional authority, however the said authority committed an error to ignore merit of candidate and to permit less meritorious candidate applying the said technicality, which is not in fair administration of justice. In view of the foregoing discussion, order dated 21/09/2010 (Annexure P-8) passed by the revisional authority is hereby quashed upholding the order passed by the Collector (Annexure P-5) dated 16/06/2008. On account of quashment of order of the Commissioner and upholding of order of the Collector appropriate action be taken by the respondent authorities. Accordingly, this petition is hereby allowed. Certified copy as per rules. (SANJAY YADAV) JUDGE