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2012 DIGILAW 409 (MP)

Ramkinkar Vishwakarma v. State of M. P.

2012-04-16

AJIT SINGH, R.S.JHA

body2012
ORDER R. S. Jha, J. 1. The appellant has filed this appeal under section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 being aggrieved by order dated 21.10.2010 passed in Writ Petition No. 11352/2009 by the learned Single Judge. 2. The brief facts leading to the filing of the present appeal are that pursuant to proceedings for appointment of a Panchyat Karmi taken by the Gram Panchayat, Banjari, Janpad Panchayat, Sidhi an advertisement was issued on 8.3.2006 pursuant to which the appellant who was at serial No. 6 of the merit list was recommended for appointment as majority of votes of the Panchas present were cast in his favour. Admittedly, in the merit list prepared in accordance with the Panchayat Karmi Scheme, respondent No.5 Ravikumar Singh, was placed at serial No.1 while respondent No.6 Pushpraj Singh was placed at Serial No.3. 3. As the appellant was appointed ignoring the merit of respondent Nos. 5 and 6, respondent No.6 challenged the appointment of the appellant by filing an appeal before the Collector, Sidhi who allowed the same and directed the Panchayat to conduct proceedings afresh in accordance with the rules. Being aggrieved with the order of the Collector, dated 18.8.2006 the appellant filed a revision before the Commissioner, who rejected the same on 5.8.2008. 4. While the revision filed by the appellant was pending before the Commissioner, respondent No.5 who was the most meritorious candidate in accordance with the merit list submitted an application for intervention before the Commissioner, which has also been rejected. Being aggrieved with the rejection of his application for intervention as well as the order passed by the Commissioner, respondent No.5 filed a further revision before the Minister of the Panchayat Department who upheld the order passed by the Collector and while recording a finding that respondent No.5 was the most meritorious candidate having received 63% marks directed that he be appointed as Panchayat Karmi vide order dated 8.9.2008. 5. The appellant being aggrieved by order passed by the Minister filed Writ Petition No. 11744/2008 before this Court alleging therein that the order passed by the Minister was passed behind his back without giving any notice to him. 5. The appellant being aggrieved by order passed by the Minister filed Writ Petition No. 11744/2008 before this Court alleging therein that the order passed by the Minister was passed behind his back without giving any notice to him. In view of the submissions of the appellant, this Court by order dated 19.6.2008 remanded the matter back to the Second Revisional Authority to decide the matter in accordance with law after giving opportunity of hearing to the appellant. It is pertinent to note that in the meanwhile in view of the order passed by the Minister, the respondent No.5 has been appointed as Panchayat Karmi and has also been notified as Panchayat Secretary and is working on the said post. 6. Pursuant to the order passed by this Court the Minister of the concerned Department by order dated 1.9.2009 again held the proceedings of the Gram Panchayat to be illegal and contrary to law and by recording a finding that the appointment should have been made on the basis of merit alone and not on the basis of majority of votes, approved the appointment of respondent No.5 as Panchayat Karmi. 7. The appellant being aggrieved again filed a petition before this Court against the order passed by the Minister contending therein that in spite of the order of remand by this Court, no notice and opportunity of hearing was given to him, that the orders passed in favour of respondent No.5 were contrary to law as he had not challenged the initial appointment of the appellant, the appellant being a Other Backward Class (OBC) candidate was entitled to be given preference and priority in appointment above respondent Nos. 5 and 6. 8. 5 and 6. 8. The learned Single Judge after extensively dealing with the issues raised by the appellant has recorded a finding that the Minister after remanding the matter issued notice to the appellant but he failed to respond to the same, that the cause of action accrued to respondent No.5 to assail the proceedings when the Collector for the first time directed the Panchayat to take up the matter as he was placed at serial No.1 in the merit list, that the respondent No.5 being the most meritorious candidate has rightly been appointed as Panchayat Karmi and that the scheme of the Government clearly specifies that a reserved category candidates would be given preference over the general category candidate only in case where they are otherwise equally placed and after recording such findings the learned Single Judge has dismissed the petition filed by the petitioner. 9. The appellant in the present appeal has again reiterated the aforesaid grounds raised by him before the learned Single Judge. 10. After hearing the learned counsel for the parties, we are of the considered opinion that the findings recorded by the learned Single Judge in respect of the first three issues raised by the appellant deserves no interference as they are based on the facts on record which have been duly considered by the learned Single Judge. As far as the issue regarding preference in appointment to reserved category candidate is concerned, it is clear from a bare reading of the scheme relating to Panchayat Karmi itself, which has been filed by the appellant himself as Annexures P1 and P2 along with the petition, that it does not provide for reservation of posts in favour of reserved categories but only provides for giving them preference in case all things are equal. In fact the State Government in the circular which was filed by the petitioner as Annexure P-2, has clearly specified that reserved category candidates and women would be given preference only in case all things being equal between them and the general category candidates in the following terms : ^^pwafd “kklu us ;g Li’V ugha fd;k gS fd fdu iapk;rksa esa fdl tkfr oxZ ds iapk;r dehZ dks fu;qDr fd;k tkosxk] ,slh n”kk esa iapk;rksa dks pkfg, fd os izkIr vkosnu esa ;ksX;rk ds leku gksus ij vuqlwfpr tkfr] tutkfr ;k fiNM+koxZ rFkk efgyk mEehnokj dks izkFkfedrk ns rFkk fu;qDr djsaA** 11. In view of the aforesaid, we do not find any merit in the submission made by the appellant to the effect that he being a OBC candidate is entitled to be appointed even though he is less meritorious. The contention is accordingly rejected. 12. At the end the learned counsel for the appellant has raised an additional issue contending that the second revision filed by respondent No.5 before the Minister was in fact not maintainable. The aforesaid contention of the learned counsel for appellant is heard only to be rejected on two counts. Firstly, that the appellant did not raise this issue in the previous petition filed by him before the learned Single Judge and in fact submitted to the jurisdiction of the Minister of the Department by seeking a direction to that effect from this Court and secondly in view of the decision of this Court rendered in the case of Abdul Hasan Qureshi vs. State of M.P. and others, 2009 (1) JLJ 320 = 2009 (1) MPHT 322 , wherein the provisions of Rule 5 of the M.P. Panchayat and Revisional Rules have been considered and analyzed and it has been held as under : “Rule 5 has already been quoted above. Second Proviso to Rule 5 makes it clear that no application for revision shall be entertained against an order appealable under the Act. It is thus clear that an appealable order has been excluded from the jurisdiction of revision. Sub-rule (2) is to be taken note of. Powers of revision under Rule 5 may be exercised by any of the Revisional Authorities at first instance. However, sub-rule (2) makes it clear that if, the revisional powers are exercised by the State Government (obviously at first instance of revision), no interference shall be made by other officer mentioned in sub-rule (1) of Rule 5. Sub-rule (2) begins with a non obstante clause. It further provides that where revisional proceedings have been commenced by the officer mentioned in sub-rule (1), the State Government may either refrain from taking any action under this rule in respect of such case until the final disposal of such proceedings by such officer or may withdraw such proceedings and pass such order as it may deem fit. It further provides that where revisional proceedings have been commenced by the officer mentioned in sub-rule (1), the State Government may either refrain from taking any action under this rule in respect of such case until the final disposal of such proceedings by such officer or may withdraw such proceedings and pass such order as it may deem fit. It goes to suggest that if the revisional power is exercised by any of the officers out of the Commissioner, the Director of Panchayats or the Collector, the State Government may withdraw such proceedings or to wait until final disposal of such proceedings by such officer. This is clearly suggestive of the fact that after final disposal of such proceedings by any of the aforesaid officers, the State Government may entertain the matter. Any other interpretation would make the words ‘until the final disposal of such proceedings by such officer’ redundant and meaningless. Thus, the State Government is not debarred from exercising revisional jurisdiction against the order of final disposal by the Commissioner, the Director of Panchayats or Collector made in the exercise of revisional jurisdiction at first instance”. 13. We are in respectful agreement with the learned Single Judge and with the aforesaid decision and are of the considered opinion that the second revision filed by respondent No.5 before the Minister was maintainable and permissible in view of the interpretation of Rule 5 of the M.P. Panchayats (Appeal & Revision), Rules, 1995 which has been given in the quoted paragraph. 14. In view of the aforesaid, we do not find any merit in the appeal. It is accordingly dismissed.