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Madhya Pradesh High Court · body

2012 DIGILAW 871 (MP)

Komal Prasad Jharia v. State of M. P.

2012-09-06

K.K.TRIVEDI

body2012
JUDGMENT K.K. Trivedi, J.:- 1. By this petition under Article 226 of the Constitution of India, the petitioner has called in question the order dated 22-12-2004 said to be passed by the Additional Commissioner, Jabalpur-respondent No. 2, by which the review application filed by the respondent No. 4 was allowed and the earlier order passed by the Additional Commissioner was recalled. It is contended that no such power of review was 'available and, therefore the order impugned could not have been passed by remand issued by the Appellate Authority was implemented inasmuch as the respondent No. 4 was already granted an opportunity of hearing, after issuing of the show cause notice and after receiving his reply, a resolution was passed and it was decided to remove the respondent No. 4 from the post. The said order of removal was never called in question and since it has attained finality, there was no question of exercising the power of review. It is further contended that the petitioner was already selected and appointed on the post of Panchayat Karmi on 22-1-1998, which order was also not challenged anywhere and as such, there was no occasion to review the order passed by the authority way back on 5-11-1999. It is also submitted that only on the basis of the circular issued by the State Government subsequently order passed earlier was recalled. This being so, it is contended that the order impugned is bad in law and is liable to be quashed. 2. No return whatsoever has been filed by the respondents No. 1 and 2, though served and represented. The return has been filed by respondents No. 3 and 4 jointly. It is alleged that the respondent No. 4 was properly selected but was illegally removed from the post as such there was no occasion to remit back the matter to the Gram Panchayat for taking the decision afresh. It is further contended that the writ petition was filed before this Court by the respondent No. 4 in the year 1998 and the Said writ petition was entertained by this Court. The order dated 24-12-1997 was stayed by this Court and, therefore, there was no question of giving effect to the order dated 5-11-1999. It is further contended that the writ petition was filed before this Court by the respondent No. 4 in the year 1998 and the Said writ petition was entertained by this Court. The order dated 24-12-1997 was stayed by this Court and, therefore, there was no question of giving effect to the order dated 5-11-1999. This being so, the order was rightly passed by the competent authority and the power of review has been exercised only to correct the error committed by the authorities while passing the earlier order. 3. It appears that the impugned order is passed by the respondent No. 2, without going through the provisions of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'Act') and “Rules made thereunder known as M.P. Panchayat (Appeal and Revision) Rules, 1995 (hereinafter referred to as 'Rules'), it is to be examined whether there was some power available to the Additional Commissioner to review his own order. The facts as have come on record indicate that the respondent No. 4 was working as a Panchayat Karmi, there were complaints made against him and by an order dated 24-12-1997, he was removed from the post by the Gram Panchayat. This order was called in question before this Court in W.P. No. 31/1998. Initially the writ petition was entertained, but since if was found that the appeal is provided, the said writ petition was disposed of with the liberty to the respondent No. 4 to file an appeal. His appeal was considered by the Appellate Authority i.e. the Additional Commissioner and he passed an order holding that before terminating the services of the respondent No. 4 he was not granted full opportunity of hearing. In fact it was necessary to issue him a show cause notice, obtain his reply and then only to pass the order with respect to his services. This order was passed on 5-11-1999 by the Additional Commissioner and the matter was remitted back to the Panchayat. It appears mat the Panchayat has issued a show cause notice to the respondent No. 4 and after receiving his reply passed a resolution on 29-10-2000. It was decided again to remove,' the respondent No. 4 from the post. The consequential orders were issued and the respondent No. 4 was removed from the post. It appears mat the Panchayat has issued a show cause notice to the respondent No. 4 and after receiving his reply passed a resolution on 29-10-2000. It was decided again to remove,' the respondent No. 4 from the post. The consequential orders were issued and the respondent No. 4 was removed from the post. The record indicates that no appeal was preferred against this order of the Gram Panchayat by the petitioner before the competent authority. 4. It will not be out of place to mention here that the Rules aforesaid have been made for the purposes of providing the appeal, the manner in which the appeals are to be filed and are to be decided by the authorities mentioned in the Rules. An appeal against the order of Gram Panchayat is to be preferred before the Sub Divisional Officer. It is clear from the findings recorded by the Additional Commissioner that no such appeal was filed by respondent No. 4 when an order of removal was issued in his respect. Thus, the order of removal has attained the finality. This being the reason, when the application was filed for initiating proceedings for non-compliance of the order dated 5-11-1999, the Additional Commissioner passed the reasoned order on 29-11-2001 and rejected such an application of the respondent No. 4. In fact, there was no such power left with the respondent No. 2 to initiate even any proceedings for committing contempt of the order of such authority, as there is no provision made under the Act. At the best, the matter could have been referred before the competent authority for taking proper action under the relevant Act. When all these proceedings were going on, it appears that the proceedings were initiated for appointment of the Panchayat Karmis. From the documents available on record, it is clear that the selection of petitioner was done and accordingly the Sarpanch of the Gram Panchayat issued the order of appointment in respect of the petitioner on 22-1-1998 vide Annexure P/2. 5. Now the claim is made by the petitioner that since his order of appointment dated 22-1-1998 (Annexure P/2) was never called in question nor was set aside by any Court of law, the petitioner would be entitled to continue in service as Panchayat Karmi. 5. Now the claim is made by the petitioner that since his order of appointment dated 22-1-1998 (Annexure P/2) was never called in question nor was set aside by any Court of law, the petitioner would be entitled to continue in service as Panchayat Karmi. This aspect is required to be examined in light of the fact that the Additional Commissioner while allowing the appeal of respondent No. 4, set aside the removal of the respondent No. 4 from the post of Panchayat Karmi and remitted back the matter to the Gram Panchayat, for giving a show cause notice and to pass appropriate order after extending an opportunity of hearing to respondent No. 4. Such an order dated 5-11-1999 was passed by the Additional Commissioner. Though in the said proceedings, the petitioner was not a party, but the fact remains that the petitioner was appointed on a fortuitous vacancy which occurred on account of removal of the respondent No. 4 and, therefore, if the appeal of the respondent No. 4 was allowed, his order of removal was set aside by the Appellate Authority, the consequence of such order was that the order of appointment of petitioner so issued on 22-1-1998 was to be treated as cancelled automatically. The petitioner cannot claim benefit of this order of appointment. However, further the fact remains that the subsequent order of removal of services of respondent No. 4, so issued was not called in question anywhere and this fact has already been considered by the Additional Commissioner in his order dated 29-11-2001 by which the application of the respondent No. 4 for initiation of contempt proceedings was rejected. This being so, there was no occasion for the respondent No. 4 to file any application for review of the order passed by the Appellate Authority. Under these circumstances, it is clear that there was no occasion to review the order passed by the Appellate Authority i.e. respondent No. 2 and even though such an application was made by respondent No. 4, the same was to be rejected out rightly. Instead of acting in appropriate manner, the Additional Commissioner, Jabalpur has passed the impugned order and has reviewed his own order only on the strength of some instructions issued by the State Government, which were subsequently withdrawn. This being so, the order impugned cannot be sustained. 6. Consequently, this writ petition is allowed. Instead of acting in appropriate manner, the Additional Commissioner, Jabalpur has passed the impugned order and has reviewed his own order only on the strength of some instructions issued by the State Government, which were subsequently withdrawn. This being so, the order impugned cannot be sustained. 6. Consequently, this writ petition is allowed. The order dated 22-12-2004 passed by the Additional Commissioner, Jabalpur in Case No. 201/B-121/2001-02 is hereby quashed. It will be open to the Gram Panchayat to reconsider the appointment of the petitioner or to re-appreciate the resolution passed by it for the purposes of appointment of petitioner and to take action accordingly. However, the appointment of the petitioner would be only prospective and not retrospective. 7. The writ petition stands finally disposed of. There shall be no order as to costs. Petition allowed.