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2010 DIGILAW 390 (MP)

Bherulal v. State of M. P.

2010-04-05

SHANTANU KEMKAR

body2010
ORDER 1. Heard 2. Briefly stated the petitioner was appointed on the post of Panchayat Karmi vide resolution dt. 9.4.2007 passed by the Gram Panchayat Rajpura, Jila Panchayat Jeerapur, District Rajgarh. The said resolution was challenged by the seventh respondent Toofansingh before the Sub-Divisional Officer (for short SDO) Khilchipur in Appeal No.3 7B-121 /2006-07. However the appeal was dismissed by the SDO vide order dt. 2.6.2007 (Annexure P/6) holding it to be not maintainable. Aggrieved the seventh respondent preferred a revision before the Additional Collector, Rajgarh (Biaora). The Additional Collector, Rajgarh vide order dt. 12.6.2007 (Annexure P/7) set aside the order passed by the SDO, holding that against the decision of the Gram Panchayat making appointment on the post of Panchayat Karmi the appeal was maintainable before the S.D.O. As a result the order of SDO passed on 1.6.2007 was set aside and the matter was remanded to the SDO, Khilchipur for fresh decision. 3. The said order of the Additional Collector was challenged by the petitioner before the Additional Commissioner in Revision No. 174/R/2006-07. The Additional Commissioner vide order dl. 5.6.2008 set aside the order dt. 2.6.2007 passed by the SDO as also the order dt. 12.6.2007 passed by the Additional Collector and remanded the matter to the Additional Collector for deciding the matter in view of the observations made by it in paragraph 11 of the order dt. 5.6.2008 (Annexure P/8). 4. The aforesaid order passed by the Additional Commissioner was challenged by the petitioner in Writ Petition No. 4329/2008 (s). The said writ petition was disposed of by this Court vide order dt. 10.12.2008 by setting aside the order dt. 5.6.2008 passed by the Additional Commissioner with a direction that any of the adverse remarks/observations made by the Additional Commissioner, for and against either of the parties, would not be taken into consideration by the Collector, in proceedings on remand, which have been ordered by the Additional Commissioner, vide order dt. 5.6.2008. It was clarified that the Collector shall adjudicate the controversy afresh, in accordance 'with law, and on the basis of the material available on record. 5. In pursuance to the directions issued by this Court the Collector examined the matter and remitted it to the SDO for deciding the appeal on merits. In pursuance to the order passed by the Collector the SDO vide order dl. 5. In pursuance to the directions issued by this Court the Collector examined the matter and remitted it to the SDO for deciding the appeal on merits. In pursuance to the order passed by the Collector the SDO vide order dl. 5.6.2009 (Annexure P/10) gave opportunity of hearing to the parties and allowed the appeal filed by the seventh respondent Toofansigh holding that the decision taken by the Gram Panchayat for making appointment of the petitioner-Bherulal on the post of Panchayat Karmi has-not been taken on the basis of consideration of the respective merits but has been taken on the basis of majority. It has been observed by the SDO that the chart showing merits of the parties prepared by the Gram Panchayat clearly establishes that the seventh respondent Toofansigh secured 68.6% in tenth standard which was much more than the petitioner. In the circumstances the SDO directed the Gram Panchayat to issue appointment order in favour of the seventh respondent. 6. Feeling aggrieved by the said order dt. 5.6.2009 passed by the SDO the petitioner preferred a revision before the Additional Collector, Rajgarh. The Additional Collector, Rajgarh vide order dl. 6.8.2009 passed in Revision No.57/ A-89/2008-09 dismissed the revision filed by the petitioner holding that the seventh respondents who was having highest marks in the tenth standard was best suitable on merits for giving appointment on the post of Panchayat Karmi. In the circumstances the Additional Collector maintained the order passed by the SOO on 5.6.2009. Feeling aggrieved the petitioner has filed this petition. 7. The contention of learned counsel for the petitioner is that after passing of the order by this Court on 10.12.2008 the Collector, Rajgarh was required to decide the controversy involved in the matter and he could not have remitted the matter to the SDO. He further submits that in view of the order dt. 5.6.2009 passed by the Additional Commissioner only the Collector was empowered to take decision when the resolution passed by the Gram Panchayat was under challenge. On the other hand the respondents have supported the impugned order passed by the SDO and by the Additional Collector. 8. Heard learned counsel for the parties and perused the annexures. 9. Admittedly, the grievance of the seventh respondent was against the appointment of the petitioner on the post of Panchayat Karmi by a resolution passed by the Gram Panchayat. On the other hand the respondents have supported the impugned order passed by the SDO and by the Additional Collector. 8. Heard learned counsel for the parties and perused the annexures. 9. Admittedly, the grievance of the seventh respondent was against the appointment of the petitioner on the post of Panchayat Karmi by a resolution passed by the Gram Panchayat. In the circumstances in view of the law laid down by a Division Bench of this Court in the case of Devidayal Raikwar v. State of M.P. and others, 2009 (1) JLJ 7 = ILR(2008) MP 1370 in which it has been held that the appointment of Panchayat Karmi pursuant to resolution is appeal-able, the appeal which was filed by the seventh respondent challenging the resolution of Gram Panchayat for appointment of the petitioner on the post of Panchayat Karmi was maintain-ble before the SDO. Initially the SDO had dismissed the appeal filed by the seventh respondent holding it to be not maintainable. When the matter traversed upto this Court, this Court remitted the matter to the Collector for adjudicating the controversy afresh in accordance with law and on the basis of material available on record. As the appeal challenging the appointment made by Gram Panchayat on the post of Panchayat Karmi was to be decided on merits by the SDO in view of the law laid down in the case of Devidayal Raikwar (supra) the Collector remitted the matter to the SDO for deciding the appeal of the seventh respondent afresh on merits. The SDO after consideration of the record found that the seventh respondent was having better marks in tenth standard still the petitioner was given appointment by the Gran1 Panchayat only on the basis of majority. He therefore set aside the appointment of the petitioner and ordered to give appointment to the seventh respondent. The said order has been upheld by the Additional Collector. 10. Having regard to the aforesaid in my considered view no case is made out to interfere into the impugned orders. Undisputedly the seventh respondent had secured highest marks in the tenth standard examination of the system of 10+2 examination. The Division Bench of this Court in the case of Devilal S/o Bherulal Palidar v. State of M.P. and others, Writ Petition No. 5579/2008 (s) after examining the scheme for appointment on the post of Panchayat Karmi in its order dt. Undisputedly the seventh respondent had secured highest marks in the tenth standard examination of the system of 10+2 examination. The Division Bench of this Court in the case of Devilal S/o Bherulal Palidar v. State of M.P. and others, Writ Petition No. 5579/2008 (s) after examining the scheme for appointment on the post of Panchayat Karmi in its order dt. 20.3.2009 has held that the requirement under the scheme is that in the system of 10+2 somebody should be 10th pass then acquisition of better qualification would not provide any further benefit in favour of such person. If the scheme required that the marks obtained in the 10th class shall decide the fate of the candidate then that only ought to have been done. Admittedly the seventh respondent was having highest marks in the tenth standard of the 10+2 system an10ngst all the candidates. In the circumstances the impugned orders of the SDO and the Collector being in conformity with the order passed by a Division Bench of this Court in the case of Devidayal Raikwar (supra) and the order passed in the case of Devilal S/o Bherulal Patidar (supra) the same needs no interference. 11. Thus I find no merit in this writ petition. Accordingly the petition fails and is hereby dismissed. As a consequence the interim order passed by this Court on 13.8.2009 stands vacated.