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2021 DIGILAW 109 (MP)

Brij Kishore Dahayat v. State of M. P.

2021-02-04

MOHAMMAD RAFIQ, VIJAY KUMAR SHUKLA

body2021
JUDGMENT : Vijay Kumar Shukla, J. Hearing convened through video conferencing mode. 1. The present intra-court appeal has been preferred under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth ko Appeal) Adhiniyam, 2005, being aggrieved by the order dated 5-12-2019 passed by the learned Single Judge in WP-23428-2019 [Rameshwar Prasad vs. State of M.P. & ors.], whereby the learned Single Judge has allowed the writ petition filed by the respondent No. 4/writ-petitioner and set aside the orders passed by the Sub-Divisional Officer (Revenue), Pawai District, Panna and Additional Commissioner, Sagar Division, Sagar. 2. The respondent No. 4/writ-petitioner filed a petition under Article 226 of the Constitution of India, assailing the order dated 24-01-2020 (Annexure-P/6) passed by the Sub-Divisional Officer (Revenue) and the order dated 21-10-2019 (Annexure-P/15) passed by the Additional Commissioner, Sagar Division, Sagar. The dispute between the parties is in respect of appointment to the post of Kotwar for Village, Deori Sarkar, District Panna. Initially, the Gram Sabha passed a resolution recommending the name of the respondent No. 4/writ-petitioner for appointment to the post of Kotwar at the respective village. In pursuance to the recommendation made by the Gram Sabha an order of appointment for the post of Kotwar was issued by the Tehsildar, who is the competent authority to make the appointment on the said post. However, the said appointment was assailed by the present appellant by preferring an appeal before the Sub-Divisional Officer claiming himself to be eligible to be appointed on the post of Kotwar, because he claimed to be a relative of an ex-Kotwar. 3. The appellate authority by order dated 24-01-2019 called for the record, examined the same and observed in its order that after inviting applications for the post of Kotwar, the Gram Sabha has not made a comparative chart indicating character of the candidates, their capability, experience and the duties of their families, if any, performed on the post of Kotwar. It is also observed by the appellate authority that the said mandatory requirements have not been fulfilled, as the applicant was not provided any opportunity for producing document. It is also observed by the appellate authority that the said mandatory requirements have not been fulfilled, as the applicant was not provided any opportunity for producing document. It is further observed that appointment to the post of Kotwar has to be made as per Rule 4 of the "Rules regarding appointment, punishment and removal of Kotwars and their duties" and while appointing the Kotwar, the authority has to take note of the relation of the said candidate with the ex-Kotwar. It is found by the appellate authority that the appointing authority gave the appointment to the writ-petitioner without considering his eligibility and as such, the appointment was held to be illegal and was set aside. Not only this, but it is further directed by the appellate authority that the appointment be made in favour of the present appellant/respondent No. 4. 4. Against the said order, an appeal was preferred by the respondent No. 4, but the same was rejected by the Additional Commissioner, Sagar Division, Sagar. Being aggrieved by the aforesaid orders the writ petition was filed by the respondent No. 4/writ-petitioner under Article 226 of the Constitution of India, which has been allowed by the impugned order. 5. It was put-forth before the learned Single Judge that the orders passed by the respondents-authorities are illegal, as they have not properly appreciated the provisions pertaining to appointment on the post of Kotwar. It was further submitted that on the basis of erroneous presumption that the respondent No. 4/writ-petitioner is relative of an ex-Kotwar and, therefore, he ought to be given preference and the appointment of the writ-petitioner was wrongly cancelled by the respondents-authorities. 6. Per contra, it was submitted on behalf of the present appellant that on the basis of the documents submitted by him, showing that he is relative of an ex-Kotwar, he was required to be given preference and, therefore, the orders passed by the authorities do not suffer from any illegality and it was rightly observed that the present appellant should be given appointment on the post of Kotwar, instead of the respondent No. 4/writ-petitioner. Learned counsel for the appellant submitted that the learned Single Judge wrongly interpreted Rule 4 of the "Rules regarding appointment, punishment and removal of Kotwars ad their duties" framed under Section 230 of the M.P. Land Revenue Code, 1959. 7. Learned counsel for the appellant submitted that the learned Single Judge wrongly interpreted Rule 4 of the "Rules regarding appointment, punishment and removal of Kotwars ad their duties" framed under Section 230 of the M.P. Land Revenue Code, 1959. 7. To appreciate the rival submissions raised at the Bar, it would be apt to refer the relevant provisions of the Rules. Rule 4 of the said Rules reads thus; "4. (1) On the occurrence of a vacancy in the post of a Kotwar, the Revenue Officer, who is empowered to make appointment, after receiving a resolution duly passed by the Gram Sabha in whose area the post of Kotwar is vacant, shall appoint an eligible person on the post of Kotwar, if the person proposed in the resolution does not fulfil the qualification prescribed in rule 2, the authorized Revenue Officer shall reject the resolution after recording the reasons in writing and intimate the Gram Sabha and call for a fresh proposal; Provided that immediately on occurrence of a vacancy, the appointing authority may temporarily appoint a suitable person to perform the duties of the Office of Kotwar till the regular appointment under sub-rule (1) is made. (2) In making appointment of a Kotwar under Sub-rule (1) preference may be given to the near relative of the ex-Kotwar, other things being equal. Note: If the vacancy is caused by the suspension or dismissal of the previous incumbent for bad character, misconduct or disobedience and the effect of the dismissal would be lost if a member of his family is appointed to succeed him, relatives of the previous incumbent may not be appointed." It is graphically clear that Rule 4 provides that it is the Gram Sabha which makes which makes a resolution recommending the name of person to be appointed on the post of Kotwar. On the basis of the said resolution the appointing authority shall make the appointment considering the fact that the person recommended by the Gram Sabha possesses the requisite qualification or not. Rule 4 further stipulates that recommendation of the Gram Sabha can be turned down only in a situation when a recommended person does not possess the requisite qualification as prescribed in Rule 2. 8. Rule 4 further stipulates that recommendation of the Gram Sabha can be turned down only in a situation when a recommended person does not possess the requisite qualification as prescribed in Rule 2. 8. Admittedly, in the present case, no such situation existed and recommendation of the Gram Sabha was not turned down by the appointing authority and the appointment of the respondent No. 4/writ petitioner was made as recommended by the Gram Sabha. The Rule does not cast any obligation on the appointing authority to make any such comparative assessment. Sub-rule (2) of Rule 4 is clear that while making appointment on the post of Kotwar under sub-rule (1) preference may be given to the near relative of the ex-Kotwar, provided that other things are equal. 9. Thus, it is not mandatory that a near relative of an ex-Kotwar has to be given appointment in case of occurrence of a vacancy. It is only when other things are equal, then preference can be given to the candidate who is near relative of the ex-Kotwar. Further, the present appellant has failed to produce any document to indicate that he is more meritorious than the respondent No. 4. In absence of any such material, the appellant is more meritorious than the respondent No. 4 and he is equal in all things with the respondent No. 4/writ-petitioner. The contention of the appellant that he ought to have been given benefit of being a relative of the ex-Kotwar, does not deserve acceptance. 10. In the case of Baddula Lakshmaiah and others vs. Sri Anjaneya Swami Temple and others, (1996) 3 SCC 52 , the Apex Court ruled that in an intra-court appeal the appellate Court is a Court of Correction which corrects its own orders, in exercise of the same jurisdiction as was vested in the Single Bench. Such is to an appeal against an order of subordinate court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error. 11. We do not perceive any illegality in the impugned order passed by the learned Single Judge warranting any interference in this intra-court appeal. Accordingly, the writ appeal being sans substance, is dismissed. There shall be no order as to costs.