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2010 DIGILAW 476 (MP)

Mahesh v. State of M. P.

2010-04-25

SHANTANU KEMKAR

body2010
ORDER 1. Aggrieved by the order dated 23.3 .2010 (Annexure P-17) passed by the Competent Authority of the State Government allowing the revision filed by the 2nd respondent against the order passed by the Additional Commissioner, the petitioner has filed this petition under Article 226 of the Constitution of India. 2. The brief facts necessary for disposal of his petition are that petitioner was appointed on the post of Panchayat Karmi vide resolution dated 12.4.2006 passed by the Gram Panchayat Walka, Tahsil Bhikangaon, District Khargone on the basis of the majority. The said resolution of appointment of the petitioner as Panchayat Karmi was assailed by the 2nd respondent before the Collector Khargone. The Collector Khargone vide order dated 21.3.2007 (Annexure P-9) recorded the finding that the resolution of the Panchayat appointing the petitioner as Panchayat Karmi is legal and just at the same time he also held that the said resolution Cannot be cancelled by him under the provisions of section 85 (1) of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhniyam. He accordingly dismissed the case filed by the 2nd respondent. 3. Aggrieved the 2nd respondent filed a Writ Petition No. 2365 of 2007 (s) before this Court challenging the order dated 21.3.2007 passed by Collector, Khargone. On 4.5.2007 this Court permitted the 2nd respondent to withdraw the petition with liberty to file appeal against the impugned order of the Collector within 30 days before the Appellate Authority. Accordingly, the 2nd respondent filed an appeal No. 227/2006-07 before the Appellate Authority. The Appellate Authority, Additional Commissioner, Indore Division vide order dated 28.9.2007 (Annexure P-12) held that the appointment of the petitioner on the post of Panchayat Karmi by the Gram Panchayat on the basis of decision taken by majority of votes to be just and proper, as a result dismissed the appeal filed by the 2nd respondent. 4. The said order of Additional Commissioner was assailed by the 2nd respondent before the State Minister, Panchayat and Rural Development Department who is the competent Authority of the State Government for deciding the revision. The revision was allowed vide order dated 11.4.2008 (Annexure P-15). The order dated 11.4.2008 passed in revision was challenged before this Court in Writ Petition No. 2972/2008 (s). The revision was allowed vide order dated 11.4.2008 (Annexure P-15). The order dated 11.4.2008 passed in revision was challenged before this Court in Writ Petition No. 2972/2008 (s). This Court noticing the fact that the said order dated 11.4.2008 was passed by the Competent Authority of the State Government was passed without affording opportunity of hearing to the petitioner, disposed of the writ petition with the consent of the parties vide order dated 22.10.2010 directing the said authority to decide the revision filed by the 2nd respondent afresh after giving opportunity of hearing to the parties. 5. In pursuance to the order dated 22.10.2010 passed in Writ Petition No. 2972 of 2008 (s) the Revisional Authority of the State Government gave opportunity of hearing to the parties and after considering their contentions set aside the order passed by the Collector and the Additional Commissioner and also cancelled the petitioner's appointment on the post of Panchayat Karmi. It has been held by the Revisional Authority that though the 2nd respondent was entitled for appointment having received more marks than the petitioner in the 10th standard exan1ination he has wrongly not been given appointment and the petitioner who received less marks was wrongly given appointment. Aggrieved the petitioner has filed this petition. 6. The contention of the petitioner is that his appointment on the post of Panchayat Karmi could not have been challenged by the 2nd respondent before the Collector. He argued that this petition deserves to be allowed quashing the impugned order and by directing the second respondent to file an appeal before the Sub-Divisional Officer. He submits that in view of the law laid down by the Division Bench of this Court in the case of Devidayal Raikwar v. State of M.P. and others, 2009 (I) JLJ 7 = ILR (2008) MP 1370 the petitioner's appointment could only have been challenged before the Sub-Divisional Officer by way of an appeal. In the circumstances according to him the impugned orders passed by the Collector, Additional Commissioner and the State Government are without jurisdiction and cannot be sustained and are liable to be quashed. He further submits that his appointment could not have been cancelled by applying the circular dated 13.8.2007 which came into existence after his appointment. 7. Having considered the contention raised by the petitioner I find no merit in the same. 8. He further submits that his appointment could not have been cancelled by applying the circular dated 13.8.2007 which came into existence after his appointment. 7. Having considered the contention raised by the petitioner I find no merit in the same. 8. In the case of Devidayal Raikwar a Division Bench of this Court allowed the writ appeal by modifying the order of Single Bench directing the petitioner to avail alternative remedy under section 85 of the Adhiniyam so as to challenge the resolution of appointment on the post of Panchayat Karmi by the Gram Panchayat. It has been held that the order of appointment on the post of Panchayat Karmi is appealable before the Sub Divisional Officer. It is clear from the said order that the writ petition was filed challenging directly the resolution. In the present case as would be clear that the second respondent did not challenge the said resolution directly before this Court. He on the other hand approached to the Collector, then this Court, thereafter on the basis of liberty granted by this Court to the Additional Commissioner then the competent authority of the State Government then again the matter was remitted by this Court to the competent authority of the State Government with the consent parties. In the circumstances at this point of time having fought the matter before various Forums and having regard to the fact that the matter stood decided on merits also, the second respondent cannot be directed to go before the Sub Divisional Officer for litigating the issue once again afresh. This is more so as even on merits, undisputedly the 2nd respondent secured more marks than the petitioner in the 10th standard examination of the system of 10+2 and as such was entitled to get appointment, in view of the law laid down by a Division Bench of this Court, Bench at Indore in the case of Devilal son of Bherulal Patidar v. State of M.P and others vide order dated 20.3.2009 passed in Writ Petition No. 5579 of 2008 (s). The Division Bench after examining the Scheme for appointment on the post of Panchayat Karmi has held that the requirement under the scheme is Lat in the system of 10+2 somebody should be 10th passed then acquisition of better qualification would not provide any further benefit in favour of such person. The Division Bench after examining the Scheme for appointment on the post of Panchayat Karmi has held that the requirement under the scheme is Lat in the system of 10+2 somebody should be 10th passed 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 2nd respondent was having higher marks than the petitioner in the 10th standard of 1 0+2 system, however ignoring the merit, the petitioner was appointed only on the basis of majority of votes casted in his favouor in the meeting of the Gram Panchayat. In the circumstances in view of the law laid down by a Division Bench of this Court in the case of Devilal, son of Bherulal v. State of M.P. and others (supra) the petitioner's contention that the order of the Revisional Authority be quashed and the second respondent be directed to file appeal before the Sub Divisional Officer to challenge his appointment cannot be accepted. Merely because at the relevant time the 2nd respondent instead of approaching the Sub Divisional Officer had approached the Collector, and thereafter, to the Additional Commissioner and thereafter to the Revisional Authority of the State Government the order passed by the Revisional Authority cannot be set aside by directing the parties to litigate once again from the initial stage in the appeal before the Sub-Divisional Officer. The Collector, the Additional Commissioner had not only dismissed the 2nd respondent's application and appeal on the ground of maintainability but have also adverted to the merits of the matter. Similarly the Revisional Authority of the State Government has also examined the contentions raised by the parties on merits on the touchstone of the scheme framed by the State Government for making appointments on the post of Panchayat Karmi. On examination the Revisional Authority of the State Government has recorded the finding that the petitioner's appointment on the basis of majority of votes was illegal and being made ignoring the merits has been set aside. The view taken by the State Government is supported by the view expressed by a Division Bench of this Court in the case of Devilal, son of Bherulal v. State of M.P. and others (supra). 9. The view taken by the State Government is supported by the view expressed by a Division Bench of this Court in the case of Devilal, son of Bherulal v. State of M.P. and others (supra). 9. The petitioner's contention that since he was appointed prior to issuance of the circular dated 13.8.2007 and as such the circular dated 13.8.2007 providing appointments to be based upon merits, cannot be applied to his appointment is wholly misconceived, even earlier the circulars dated 27.1.2006 nowhere provides that the appointments are to be made ignoring the merit. Even otherwise when the matter was sub-judice at the instance of the second respondent it cannot be said that the petitioner's appointment was unquestionable being made prior to issuance of circular dated 13.8.2007. 10. In the circumstances. I find no merit in this writ petition. The petition is accordingly dismissed in limine.