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Madhya Pradesh High Court · body

2014 DIGILAW 137 (MP)

Kedar Singh v. State of M. P.

2014-01-29

ANIL SHARMA, RAJENDRA MENON

body2014
JUDGMENT 1. Challenge in this appeal under section 2(1) of the M.P. Uccha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005 is made to an order Annexure-A/1 dated 6.12.2013 passed by the writ Court in W.P. No.13815/2012. By the aforesaid order, the learned writ Court has dismissed the writ petition filed by the petitioner. 2. Facts in nutshell go to show that an advertisement was issued by the Panchayat in question on 14.2.2006 for appointment of Panchayat Karmi, 26 applications were received. A meeting of the Gram Panchayat was held on 21.2.2006 and the petitioner who had received 42.6% was directed to be appointed as a Panchayat Karmi. Subsequently, an order was also passed on 22.2.2006, whereby he was appointed as a Panchayat Karmi, Jamuna, thereafter, under section 69(1) of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam vide order dated 17.6.2006, he was also appointed as a Panchayat Secretary. Respondent no.6 Shri Rakesh Kumar Vishwakarma was placed at no.1 in the merit list having been obtained 58.8% but by adopting the majority voting system, petitioner, a less meritorious candidate, who had received 42.6% was appointed. 3. Aggrieved by this action, respondent no.6 challenged the appointment by filing an appeal before the Sub-Divisional Officer. The Sub-Divisional Officer dismissed the appeal on 15.1.2008 by holding that against the resolution of the Gram Panchayat, the appeal was not maintainable. A revision was filed before the Additional Collector, Satna, but the revision was dismissed on 16.7.2009 on the ground that revision is barred by delay of more than 8 months. A second revision was filed before the Additional Commissioner and by the order dated 25.07.2012, the Additional Commissioner held that the appointmently by majority was not permissible and holding that a more meritorious candidate have been overlooked and the appointment on the basis of majority voting system is not permissible, the Additional Commissioner has interfered into the matter and challenging the order of the Additional Commissioner, the writ petition was filed and the writ petition having been dismissed, the appellant has filed this writ appeal. 4. 4. Shri D.K. Tripathi, learned counsel for the appellant argued that against the resolution passed by the Gram Panchayat, the revision was not maintainable and, therefore, overlooking the law laid down by the Division Bench of this Court in the case of State of M.P. v. Rajesh Kumar 2013(1) JLJ341 = 2013(2) MPLJ 130 and the judgment in the case of SagarMachhua Sahkari Samiti Seoni v. C.E.O. Janpad Panchayat Seoni & anr. 2008(I) JLJ 329 = 2008(2) MPLJ 194 , the learned Single Judge has committed an error. It was emphasized by Shri D.K. Tripathi, learned counsel that the revision against the resolution was not maintainable and, therefore, interference made by the Additional Commissioner was not warranted and ignoring all these factor, as the learned Single Judge has interfered in the process of appointment, interference in this appeal is called for. 5. Shri Rahul Jain, learned Dy. Advocate General invities our attention to the detailed reasons given by the learned Single Judge and the law laid down in the case of Abdul Hasan Qureshi v. State of M.P. & ors. 2009(1) JLJ 348 = 2008(4) MPLJ 546 , the wordings of the so called resolution dated 21.2.2006 and supported the findings recorded by the learned writ Court. 6. We have heard learned counsel for the parties at length and have considered the rival contentions in the backdrop of the judgments relied upon by Shri D.K. Tripathi. Even though it is a fact that in the case of Rajesh Kumar (Supra) and Sagar Machhua Sahkari Samiti Seoni (Supra), it has been held that a revision or an appeal against a resolution of the Gram Panchayat is not maintainable but subsequently in the case of Abdul Hasan Qureshi (supra), the matter has been considered and it has been held that even though against the resolution passed, a revision may not be maintainable but if resolution itself directs for appointment of a person to the services of the Gram Panchayat, it is held that the said resolution, apart from being a simple resolution, also takes form of order of appointment and, therefore, it can be challenged. 7. 7. The learned Single Judge in his order has reproduced the entire resolution dated 21.2.2006 and t is seen that after resolving to appoint the present petitioner, the resolution further says that he is appointed as a Panchayat Karmi to the Panchayat in question and Shri Deenanath Stnami is kept in waiting list No.1. It is aftr taking note of the wording of the resolution and the judgment rendered in the case of Abdul Hasan Qureshi (supra), the learned Single Judge has found that in this case, taking note of the resolution passed, which amounts to appointment, the revision was maintainable. 8. The apart, it has been found by learned Single Judge that a Division Bench of this Court in the case of Suresh S/o Laxman Rathod v. Chief Executive Officer, Zila Panchayat, Barwani and ors. 2012(I) MPWN 73 = 2011(4) MPLJ 717 has laid down the principle that under the Panchayat Karmi Scheme, appointment of Panchayat Karmi has to be done on the basis of the merit and not on majority of persons present and voting system. Learned Single Judge had held that in this case, the merit is being ignored and on the basis of the majority of voting, the appointment is being made. It is contrary to the scheme of Panchayat Karmi appointment, therefore, interference is made. Taking note of all these circumstances, the learned Single Judge has interfered into the matter. 9. Keeping in view the aforesaid, we are of the considered view that no error has been committed in the matter and we have no hesitation that the interference called for in this appeal is not to be made. Technicalities and the question of revision maintainable against the resolution being kept aside for a moment, the facts and circumstances do show that the statutory authority and the Panchayat has indulged in the appointment of Panchayat contrary to the law. In as much as, the meritorious candidate is ignored and on majority voting, a less meritorious candidate is appointed. If that be the manner, the appointment is illegal, ab initio and unsustainable and taking note of all these circumstances, as the writ Court exercising jurisdiction under Article 226 of the Constitution has interfered into the matter, we see no reason as to why, we should interfere into the matter. 10. The substantial justice has to be done and the rule has to be upheld. 10. The substantial justice has to be done and the rule has to be upheld. If the appointment is found to be contrary to the rule or law or the principle applicable for appointment, the writ Court could not close eyes to the process giving predominant consideration to technical aspects. That apart, if the resolution dated 21.2.2006 is taken note of and if it is evaluated in the backdrop of the law laid down in the case of Abdul Hasan Qureshi (supra), it is clear that it is not a resolution resolving only to recommend for appointment of the petitioner. It is in fact a resolution followed with a direction for appointment. That being so, the learned writ Court has not committed any error in the matter warranting interference. 11. Taking note of the totality of the circumstances, we see no reason to interfere into the matter, the petition is, therefore, dismissed.