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Madhya Pradesh High Court · body

2013 DIGILAW 584 (MP)

Archana Tiwari v. State of M. P.

2013-05-02

K.K.TRIVEDI

body2013
JUDGMENT : This petition under Article 226 of the Constitution of India has been filed seeking to challenge the order dated 2-8-2008 passed by the respondent No. 2 allowing the revision of the respondent No. 6. It is contended that since such an order is bad in law in view of the fact that well reasoned findings of the Collector have been disturbed and a person who was facing a criminal prosecution on the date of making application, is directed to be appointed on the post of Panchayat Secretary, therefore, the order is liable to be quashed. Hence, this writ petition is required to be filed. 2. The facts giving rise to filing of this petition, in brief, are that the petitioner and the respondent No. 6 were the candidates for appointment on the post of Panchayat Karmi pursuant to an advertisement issued by the Gram Panchayat. The resolution was already passed by the Gram Panchayat to the effect that only those who are having the merit and who are having the clean record would be considered for selection. It was specifically provided that if a candidate is facing any criminal prosecution, he/she would not be entitled to take part in selection. After preparation of the merit list when the matter was placed before the Gram Panchayat for consideration, since the respondent No. 6 was to be favoured, the then Sarpanch of the Gram Panchayat acted illegally. There were differences between the members of the Panchayat and therefore, no such selection could be made. The entire proceedings were written on 31 -8-2007 and the matter was referred to the Collector under section 86(2) of the M. P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as "the Act") for making selection. The Collector directed the Chief Executive Officer of the Janpad Panchayat to make a selection out of the candidates who have applied and since the petitioner was selected for appointment, the order of appointment was issued in her favour on 13-12-2007, pursuance to which she gave joining and started working. 3. Being aggrieved by the appointment of the petitioner, the respondent No. 6 preferred an appeal before the Collector which came to be heard and decided on 11-3-2008. 3. Being aggrieved by the appointment of the petitioner, the respondent No. 6 preferred an appeal before the Collector which came to be heard and decided on 11-3-2008. After considering the facts as have been pointed out, the Collector reached to the conclusion that not only the respondent No. 6 was facing a criminal prosecution for the offence punishable under sections 147, 148, 149, 294, 323, 325, 506-B and 448 of the Indian Penal Code in the court of law but he was also not the local resident of the village. On the other hand the respondent No. 6 was a resident of Sagar. After holding that the selection was rightly done, the appeal filed by the respondent No. 6 was dismissed. Feeling aggrieved by the order of the Collector, the respondent No. 6 preferred revision before the Additional Commissioner, Sagar Division, Sagar and since now the said revision has been allowed with a direction to appoint the respondent No. 6, this writ petition is required to be filed. 4. It is contended by the petitioner that the entire process of considering the revision by the respondent No. 2 is vitiated inasmuch as unless there is a question of law involved, the revisional power under Rule 5 of the M. P. Panchayat (Appeal and Revision) Rules, 1995 (hereinafter referred to as "the Rules") was not to be entertained. It is further contended that the respondent No. 6 was guilty of suppression of material fact in his application for appointment and therefore, the application was rightly rejected. Apart from this, the application was not submitted by the respondent No. 6 within the last date prescribed for submitting such application and this fact is further proved by the return filed by the Gram Panchayat before this Court, therefore, the order passed by the revisional authority is liable to be quashed. 5. Per contra, by filing return it is contended on behalf of the respondent No. 6 that there was no occasion to select a less meritorious candidate than the respondent No. 6. It is contended that criminal case launched against the respondent No. 6 was decided in his favour. As per the merit order, the respondent No. 6 was on the top of the select list, therefore, he was to be appointed on the post of Panchayat Karmi. It is contended that criminal case launched against the respondent No. 6 was decided in his favour. As per the merit order, the respondent No. 6 was on the top of the select list, therefore, he was to be appointed on the post of Panchayat Karmi. These facts were not considered by the Collector and therefore, rightly the order was passed by the Additional Commissioner in the revision filed by the respondent No. 6. In view of this, it is contended that the contentions raised by the petitioner are to be rejected and the writ petition is liable to be dismissed. 6. The respondent No. 5-Gram Panchayat has filed return and has specifically contended in para-8 of the return that the application was not filed by the respondent No. 6 within time. Further the respondent No. 6 was not a resident of the village. On the other hand, he was residing at Sagar. It is contended that in terms of the scheme made by the State Government in exercise of powers conferred under section 70 read with section 69 of the Act the respondent No. 6 was not eligible to take part in selection for appointment on the post of Panchayat Karmi. It was specifically indicated in the advertisement issued by the Gram Panchayat that on the date of making application for selection on the post of Panchayat Karmi, a candidate should not be involved in any criminal case and a declaration to this effect should be made in the application. In the prescribed proforma of application such a fact was to be specifically mentioned. However, the respondent No. 6, who was facing a criminal trial even on the date when the application was submitted, deliberately made a wrong statement that no criminal prosecution was pending against him. Even if the application submitted by the respondent No. 6 was to be treated as made within time, it was to be seen that the criminal prosecution started against the respondent No. 6 ultimately came to be decided only on 27-11-2007 i.e. much after the filing of the application before the Panchayat by the respondent No. 6. In view of this, it is contended that the order passed by the Collector is just and proper and the order passed by the Revisional authority, the Additional Commissioner, Sagar Division, Sagar is liable to be quashed. 7. In view of this, it is contended that the order passed by the Collector is just and proper and the order passed by the Revisional authority, the Additional Commissioner, Sagar Division, Sagar is liable to be quashed. 7. I have heard learned counsel for the parties at length and minutely perused the record. Undisputedly, the Panchayat Karmi Yojna was made by the respondents-State on 12th September, 1995. The said scheme is already available on record as Annexure R5-1. The qualification essential for appointment is mentioned in para-3 and in para 3.3 of the said scheme it is specifically provided that Gram Panchayat can include any other essential qualification or required condition in the advertisement. 8. It is contended by the Gram Panchayat that while issuing the advertisement on 30-7-2007 earlier it was not mentioned that the candidate should not be facing any criminal prosecution but as the instructions were issued by the competent authority of the State, a corrigendum was issued in the advertisement on 8-8-2007 categorically stating that a candidate has to make a declaration in his application that he is not facing any criminal prosecution nor any criminal case is pending in the Court. The said documents are already available on record as Annexure R5-5 along with the return filed by the respondent No. 5. An application submitted by the respondent No. 6 has also been filed by the respondent No. 5 as document (Annexure R5-7). In the said application in para-13 a specific query is raised whether any criminal or judicial proceedings are pending against the candidate. The respondent No. 6 has answered it as "No". However, the fact remains that the charge-sheet was already filed against the respondent No. 6 at the relevant time in the Court and the criminal case was pending against him which according to the respondent No. 6 came to be decided on an application of compounding on 27-11-2007. This order-sheet has been produced by the respondent No. 6 along with his return as Annexure R-2. Thus, the declaration made by the respondent No. 6 on the date when he submitted the application was incorrect with the knowledge that he was facing a criminal prosecution on that date when he submitted the application. 9. This order-sheet has been produced by the respondent No. 6 along with his return as Annexure R-2. Thus, the declaration made by the respondent No. 6 on the date when he submitted the application was incorrect with the knowledge that he was facing a criminal prosecution on that date when he submitted the application. 9. Apart from the aforesaid, last date of filling the form was already indicated in the advertisement and when the advertisement was issued on 30-7-2007 it was categorically stated that the applications were to be submitted between 30-7-2007 to 13-8-2007 in the office of the Gram Panchayat. The corrigendum advertisement which was issued, though did not extend the period but it was said that the applications were to be received upto 13-8-2007 in the office of the Gram Panchayat. The application submitted by the respondent No. 6 produced on record as Annexure R5-7 includes a certificate said to be issued in favour of the respondent No. 6 by the Sarpanch of Gram Panchayat Hinnaud on 30-8-2007. If the said certificate was annexed with the application submitted by the respondent No. 6 as is mentioned in the list of documents filed along with the application, how could such a certificate be produced on the date when the application was said to be made prior to 13-8-2007. The application, if made after 13-8-2007 was not at all to be entertained by the Gram Panchayat. How such application of the respondent No. 6 could be entertained is not known. If that is so, and if such a fact is not disputed by the respondent No. 6 by filing a counter to such affidavits of the Gram Panchayat it has to be held that the application was not made by the respondent No. 6 within time and therefore, his candidature was not at all to be considered. 10. Though the Collector while considering the appeal filed by the respondent No. 6 has not looked into these aspects but if coupled with the findings recorded by the Collector, these facts are also taken note of, it would be clear that there was no application of mind by the Additional Commissioner by unsettling the well reasoned order of the Collector. In this view of the matter, the order passed by the Additional Commissioner cannot be sustained nor can be given a stamp of approval by this Court. 11. In this view of the matter, the order passed by the Additional Commissioner cannot be sustained nor can be given a stamp of approval by this Court. 11. Resultantly, this writ petition is allowed. The order dated 2-8-2008 passed by the Additional Commissioner in Case No. 517-A/89/2007-2008 is hereby quashed and the order passed by the Collector on 11-3-2008 is hereby affirmed. Looking to the facts and circumstances of the case, the parties to bear their own costs. Petition allowed.