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2008 DIGILAW 744 (MP)

Prajapal Singh v. State of M. P.

2008-06-19

SHANTANU KEMKAR

body2008
ORDER 1. This is a petition filed under Article 226 of the Constitution of India. 2. The relevant facts of the case briefly are that petitioner applied for the appointment to the post of Gram Panchayat Karmi in Gram Panchayat, Balodiya District Mandsaur. The Gram Panchayat adopted the resolution dated 8.6.2002 for the appointment of the petitioner as Gram Panchayat Karmi. Aggrieved, the 4th respondent Ramchandra filed an appeal under section 91 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (For short "Adhiniyam") before the Sub Divisional Officer. The Sub Divisional Officer did not find any illegality in the resolution by which the petitioner was selected and appointed as Panchayat Karmi. He accordingly dismissed the appeal filed by the 4th respondents vide order dated 31.1.2003 (Annexure P-12). 3. Aggrieved, the 4th respondent filed Revision No. 52/02-03 before the Additional Collector Mandsaur. The Additional Collector Mandsaur vide order dated 28.7.2003 (Annexure P-13) allowed the revision holding that on perusal of the record of Gram Panchayat it appears that the petitioner has been wrongly selected. It has been further observed that in spite of there being other meritorious candidates, the petitioner has been selected not on merits but by way of majority of votes in the meeting which is contrary to the criteria of selection fixed by the Panchayat Karmi Scheme notified by the Government of Madhya Pradesh. The petitioner challenged the aforesaid order passed by the Additional Collector by way of revision before the Additional Commissioner Ujjain. The Additional Commissioner vide order dated 8.4.2002 (Annexure P-14) dismissed the petitioner's revision. Hence, this petition. 4. The counsel for the petitioner contended that the petitioner being more meritorious than 4th respondent Ramchandra, he was rightly selected and another candidate Laxman who was having more marks than the petitioner was subsequently elected as Sarpanch of the Gram Panchayat, in the circumstances, the Additional Collector and the Additional Commissioner should not have interfered into the petitioner's selection and his appointment on the post of Panchayat Karmi. He argued in the appeal filed by the 4th respondent before the Sub Divisional Officer he challenged the resolution and the resolution being not appeal able in view of the judgment of this Court in case of Ram Lakhan Rawat v. State of M.P and others [2000 (2) MPLJ 176] the appeal before the Sub-Divisional Officer was incompetent. 5. He argued in the appeal filed by the 4th respondent before the Sub Divisional Officer he challenged the resolution and the resolution being not appeal able in view of the judgment of this Court in case of Ram Lakhan Rawat v. State of M.P and others [2000 (2) MPLJ 176] the appeal before the Sub-Divisional Officer was incompetent. 5. Shri Arvind Gokhale, learned GA argued that selection of the petitioner by way of resolution was followed by issuance of order of appointment by the Gram Panchayat. The challenge before Sub Divisional Officer by way of an appeal was whether the selection made by the Gram Panchayat by adopting the resolution was not correct either on facts or in law. In the circumstances, according to him, the appeal was competent· before the Sub-Divisional Officer. He further pointed out that this point was not raised by the petitioner before any of the Courts below and the ground in this regard has been raised in this petition also. In the circumstances, the petitioner is not entitled to raise this ground for the first time at this stage of final arguments. According to him, petitioner's selection was not on the basis of the consideration of comparative merits and de-merits of the candidates but was made by the Gram Panchayat on the basis of the majority of votes which is contrary to the provisions of the Scheme and criteria for the selection. In the circumstances, the Additional Collector as also Additional Commissioner have committed no illegality in setting aside the petitioner's selection as Panchayat Karmi and directing the Gram Panchayat to carry out fresh process for the appointment of Panchayat Karmi. He further argued that after passing of the orders of the Additional Commissioner, petitioner's power of Secretary has been revoked on 10.2.2006. In support he referred to paragraph 5 of the return. 6. The petitioner was selected on the basis of the resolution adopted by the Gram Panchayat on 8.6.2002. Pursuant to the said resolution an order of appointment was issued on 10.7.2002 (Annexure P-7). The 4th respondent challenged the petitioner's selection made by the Gram Panchayat by adopting the aforesaid resolution by filing an appeal under section 91 of the Adhiniyam read with Rule 3 of the M.P. Panchayat (Appeal and Revision) Rules, 1995 (for short, "the Rules"). Pursuant to the said resolution an order of appointment was issued on 10.7.2002 (Annexure P-7). The 4th respondent challenged the petitioner's selection made by the Gram Panchayat by adopting the aforesaid resolution by filing an appeal under section 91 of the Adhiniyam read with Rule 3 of the M.P. Panchayat (Appeal and Revision) Rules, 1995 (for short, "the Rules"). The Sub Divisional Officer while deciding the appeal vide order dated 31.1.2003 (Annexure P-12) has considered whether the selection made by the Gram Panchayat by adopting resolution was correct or not. Merely because the appeal was filed against the resolution, it cannot be said that the same was incompetent as the order of appointment passed on 10.7.2002 pursuant to the said resolution and the selection of the petitioner was very much under consideration in appeal before the Sub Divisional Officer. 7. A Division Bench of this Court at Jabalpur in the case of Devidayal Raikwar v. State of M.P. (Writ Appeal No. 360/08 decided on 8.4.2008) after considering conflicting decisions of this Court in the case of Smt. Hemlata v. State of M.P. and others [1997 (2) Vidhi Bhasvar 113]; Ram Chandra Ahirwar v. Sub Divisional Officer, Jatara and others [ 1998 (2) JLJ 267 ]; Ram Lakhan Rawat v. State of M.P. and others [ 2000 (1) JLJ 280 = 2000 (2) MPLJ 176] and Hukumchand v. Dheer Ji and others [ 2001 (1) JLJ 229 ] and also considering the Division Bench Judgment of this Court in the case of S.M. Sahakari Samiti Seoni v. Chief Executive Officer, Janpad Panchayat Seoni and another [ 2008 (1) JLJ 329 = 2008 (1) MPHT 254 (DB)] has held that the view taken by the learned Single Judge in Ramlakhan Rawat (supra) is not correct in law. The Division Bench also held that an appeal would lie against an order of appointment of Panchayat Gram Karmi issued by the Sarpanch of Gram Panchayat under section 91 of the Adhiniyam read with rule 3 of the rules of 1995. The Division Bench further observed that obviously, while deciding the, appeal the appellate authority will have all necessary power to grant relief in a case where he decides to allow the appeal and as such powers will also include the power to decide whether the selection made by the Gram Panchayat by adopting resolution was not correct either on facts or in law. 8. 8. Thus in view of the Division Bench Judgment of this Court in case of Devidayal Raikwar (supra) and also taking note of the fact that the objection in regard to the maintainability of the appeal having not been taken by the petitioner before all three authorities below and also not even in Writ Petition the objection in this respect is rejected. 9. The petitioner could not establish that there is any material illegality in the orders of the Additional Collector and Additional Commissioner so as to warrant interference by this Court. The findings recorded by these authorities clearly show that the petitioner's appointment was made by the Gram Panchayat not on the basis of merits in terms of the scheme for appointment of Panchayat Karmi but on the basis of majority of votes in the meeting of the Gram Panchayat. Merely because the Additional Collector and Additional Commissioner in their orders have observed that one Laxman was more meritorious than the petitioner and the said Laxman having been elected Sarpanch subsequently cannot be a ground to sustain illegality committed by the Gram Panchayat in selecting the petitioner. The Additional Collector and the Additional Commissioner have rightly exercised their jurisdiction in holding that the selection process is vitiated since the norms and the criteria fixed for the selection has not been followed by the Gram Panchayat and the selection is made on the basis of majority of votes. In my considered view the authorities have rightly ordered the Gram Panchayat to initiate fresh selection process. 10. Accordingly, the petition deserves to be and is hereby dismissed with no order as costs.