Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 466 (KAR)

Kariyappa Muttappa Muttur v. State Of Karnataka

2019-02-19

G.NARENDAR

body2019
JUDGMENT : G. Narendar, J. - Heard the learned counsel for the petitioner and the learned HCGP. 2. The petitioner is before this Court being aggrieved by the order passed by the 3rd respondent Assistant Commissioner dated 02.01.2019 passed in proceedings bearing No.MISC/AP-87/2016-17 marked as Annexure-G to the writ petition. 3. The case of the petitioner is that, under circular dated 23.09.1982, the 1st respondent permitted appointment of Gram Sahayak on stipendiary basis to assist the Village Revenue Officers in the discharge of their duties and the circular came to be issued pursuant to the Government Notification dated 16.09.1978. 4. That in terms of the circular, the 4th respondent Tahasildar issued an advertisement calling for applications for the post of Gram Sahayak, which fell vacant on account of retirement of one Kudha Ladasab Sanadi. That the vacancy arouse on 31.05.2015 and pursuant to the advertisement the petitioner herein as well as the aunt of the 5th respondent filed an application for appointment to the said post. True copy of the application is produced as Annexure-B. That the 4th respondent obtained a report from the Revenue Inspector and on the basis of the report and after scrutinizing the applications, issued orders of appointment appointing the petitioner as the Gram Sahayak. 5. That the 5th respondent, who is not an applicant, questioning the appointment of the petitioner by filing an appeal before the 3rd respondent, the third respondent issued notices and after hearing both the parties, has been pleased to pass an order canceling the appointment of the petitioner as Gram Sahayak. 6. It is contended that the 5th respondent not being an applicant, the learned Assistant Commissioner erred in interfering with the order of appointment and that the 5th respondent had no locus standi to call in question the appointment of the petitioner. It is further contended that the impugned order said to have been passed in a proceedings invoking the proceedings of Section 49 of the Karnataka Land Revenue Act is unsustainable in view of the rulings rendered by the Division Bench of this Court in W.A.No.100174/2017 disposed of on 08.11.2017. The learned counsel for the petitioner would invite the attention of this Court to the findings rendered in para 10 of the said judgment: "10. The learned counsel for the petitioner would invite the attention of this Court to the findings rendered in para 10 of the said judgment: "10. Prima facie, the Assistant Commissioner had no jurisdiction to entertain an appeal under Section 49 of the Act to set aside the order of appointment made by the Tahasildar. The appointment of Gram Sahayak was not made under the provisions of the Act. Thus, the order of the Assistant Commissioner dated 13.07.2016 compelled the appellant to prefer W.P.No.106344/2016. In view of the remand order made by the Assistant Commissioner to the Tahasildar to reconsider the matter, this Court directed the Tahasildar to proceed with the selection process afresh in terms of the order of the Assistant Commissioner. Once the Assistant Commissioner has passed the order without jurisdiction, the subsequent direction issued to the Tahasildar deserves to be negated. Any edifice built upon a foundation, which is not in conformity with law, i.e., without jurisdiction, shall fall. We are of the considered view that the Assistant Commissioner had no jurisdiction to entertain an appeal under Section 49 of the Act, when the matter was already seized of, before this Court. Passing of an order by the Assistant Commissioner without jurisdiction created the problem instead of mitigating the dispute, it aggravated the situation." 7. Per contra, learned HCGP would submit that the said ruling by the Division Bench is distinguishable in the light of the fact that the Division Bench has rendered the ruling without reference to the circular dated 22.03.1979, under which the authority to scrutinize the selections and revise/modify the order of the Tahasildar in case of violation is categorically vested in the 3rd respondent Assistant Commissioner. 8. The learned HCGP would further contend that the appointment of the petitioner is contrary to the Government order dated 22.03.1979, wherein the Government has categorically insisted that the selection by the Tahasildar should be confined to the members hailing from families traditionally holding the inferior village offices. 9. On perusal of the circular dated 23.03.1979, the same substantiates the contention canvassed by the learned HCGP. Further para 4 of the circular reads as under: "(4) The Assistant Commissioner will scrutinize selections, revise or modify the orders of Tahsildar in case of violations of any of conditions." 10. 9. On perusal of the circular dated 23.03.1979, the same substantiates the contention canvassed by the learned HCGP. Further para 4 of the circular reads as under: "(4) The Assistant Commissioner will scrutinize selections, revise or modify the orders of Tahsildar in case of violations of any of conditions." 10. On a bare reading of the above, it is apparent that the Authority to scrutinize and examine the validity of the appointments made to the post of Gram Sahayak by the Tahasildar, has been specifically vested in the Assistant Commissioner. 11. Per contra, learned counsel for the petitioner would submit that, even if it is to be held that the Division Bench has not looked into the instant circular, he would contend that the 5th respondent could not invoke the provisions of Section 49 of the Land Revenue Act ('the Act', for short) to maintain the appeal. 12. The said contention need not detain this Court any further for the simple reason that, though said provision was relied upon, a perusal of the impugned order does not any where reflect of the 3rd respondent having invoked the provisions of Section 49 of the Act to pass the impugned order. On the contrary, in the penultimate paragraph of the impugned order, it is stated that the order is passed invoking the provisions of Karnataka Village Officers Abolition Act, 1961. That apart, it is also settled law that, mere invocation of wrong provision of law, if the authority otherwise is invested with the jurisdiction to pass the order, the same will not detract from the validity of the proceedings. The petitioner is unable to rebut the contention that the Assistant Commissioner is invested with the authority to scrutinize and cancel/modify the order passed by the Tahasildar in terms of the circular of 1979. In that view of the matter, the petition lack merits and is accordingly dismissed.