Judgment:
1 W.A.No.1295/2012 State of M.P.& others Sushil Kumar Patel 12.3.2013 Shri Rahul Jain, Dy.AG for appellants.
Shri R.N.Shrivastava and Shri Ghanshyam Sharma, Counsel for respondent I.A.No.14398/2012 for condonation of delay in filing this appeal Considering the reasons stated in the application supported by an affidavit, and to the fact that prayer made in the application is not opposed by the respondent, hence the application is allowed.
The delay in filing this appeal is condoned.
Heard on admission.
This appeal is directed against an order dated 4.9.2012 in W.P.No.881/2012 by which the Single Bench of this Court held that the certificate issued to the respondent in view of rule 6 sub-rule 6(2) (2-a) of the M.P.Ex-Serviceman (Reservation of Vacancies in the State Civil Services and Posts Class-III and Class-IV) Rules, 1985 was equivalent to graduate and the respondent can be permitted to participate in the process for selection on the post of Sub-Inspector and Subedar Police in the police department.
This order has been assailed by the appellants on various grounds.
Learned counsel for respondent submits that an identical matter has been decided by a Division Bench of this Court in Writ Appeal No.110/2013 State of M.P.& others versus Haro Om Patel & another on 22.2.2013 by which the order passed by the Single Bench in identical matter has been affirmed and the appeal has been dismissed.
It is submitted that the controveRs.involved in this case is identical, so this appeal may also be decided in the light of the judgment of the Division Bench in Hari Om Patel (supra).Shri Rahul Jain, learned Dy.AG does not dispute the factual position that a Division Bench of this Court has already considered and decided the identical matter.
2 W.A.No.1295/2012 State of M.P.& others Sushil Kumar Patel 12.3.2013 In Hari Om Patel (supra) the Division Bench considering the similar controveRs.held thus:- “This Intra-Court-Appeal under section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Peeth Ko Appeal) Adhiniyam, 2005 at the instance of the State Government and its functionaries is directed against the order passed by learned Single Judge in Writ Petition No.6042/2012, decided on 03-10-2012; whereby, taking into consideration that the issue as to recognition of graduation certificate obtained by an Army Personnel from an Institute run by Indian Army to be equivalent to the educational qualification prescribed in Column 1.8 of the advertisement dated 25-05-2011 (Annexure-P/2) in Writ Petition No.6042/2012) for appointment to the post of Sub-Inspector, Subedar and Platoon Commandant being settled in Writ Petition 8252/2011(s).Ram Prakash Singh Tomar and another versus State of Madhya Pradesh and otheRs.directed the respondent to permit the petitioners (respondents herein) to participate in further process of selection subject to his eligibility in the selection process already held and proceed for his appointment in accordance to rule.
It is brought to our notice that the decision in Writ Petition No.8252/2011(s) has been affirmed by the Division Bench at Gwalior in Writ Appeal No.682/2012 decided on 03-12-2012.
Taking into consideration Rule 6 (2A) of Madhya Pradesh Ex-Servicemen (Reservation of Vacancies in the State Civil Services and Posts Class III and Class IV) Rules, 1985 which provides for that “(2A) For appointment to any reserved vacancy in Class III posts, a matriculate Ex-servicemen (which term includes an Ex- servicemen, who has obtained the Indian Army Special Certificate of Education, or the corresponding certificate in the Navy or the Air Force).who has put in not less than 15 years of service in the Armed Forces of the Union may be considered eligible for appointment to the post for which he essential educational qualification prescribed is graduation and where, - (a) work experience of technical or professional nature is not essential; or (b) though non- technical professional work experience is prescribed as essential yet the appointing authority is satisfied that the Ex-serviceman is expected to perform the duties of the post by undergoing on the job training for a short duration.”
.]., it has been held :
3. W.A.No.1295/2012 State of M.P.& others Sushil Kumar Patel 12.3.2013 “We have perused the recruitment rules known as Rules of 1985.
As per the recruitment rules, the minimum qualification for appointment to the post of Sub Inspector, Subedar and Platoon Commandant is graduation, however, the respondents applied for the post against the vacancies of Ex-servicemen of Army and for the aforesaid persons the rules have been framed under Article 309 of the Constitution of India by the Government of Madhya Pradesh and in the rule particular qualification has been prescribed.
The respondents have fulfilled the qualification.
It is contended by the learned Deputy Advocate General that in the rule word “may”.
has been used, which implies discretion by the authority.
In our opinion, the aforesaid contention cannot be accepted as the word “may”.
in the rule sometimes can be used as “shall”.
also, as considered by the learned Single Judge after quoting the judgment of the Hon'ble Supreme Court viz., AIR 196.SC 27.(V 5.C 54.(State of Madhya Pradesh versus M/s Azad Bharat Finance Co.and another) and AIR 196.S.C.1618 (V 5.C 242.(State of Uttar Pradesh versus Jogendra Singh).Hence, in our opinion, there is no merit in this appeal.
It is hereby dismissed.”
The appellants having failed to pursue us to take different view we are inclined to follow the view taken in Ram Prakash Singh Tomar (supra) and uphold the impugned order passed by the learned Single Judge.
In the result, appeal fails and is dismissed.
Since the appeal does not merit consideration, the application under section 5 of the Limitation Act, 1963 seeking condonation of delay of 80 days in filing present Writ Appeal also fails and is rejected.
However, no costs.”
As the controveRs.involved in the present appeal is identical, this appeal is also dismissed in view of the order passed by the Division Bench in Hari Om Patel (supra).No order as to costs.
(Krishn Kumar Lahoti) (M.A.Siddiqui) C.
Judge Judge