Hanif Qureshi vs State of M.P. and Others

K.K. Trivedi, J.—The short question involved in the present writ petition is whether the order passed by the Appellate Authority, i.e. the Collector, Balaghat, in an appeal of the petitioner could have been set aside by the Revisional Authority, i.e. the Additional Commissioner, Jabalpur Division, Jabalpur or not. The fact remains that the petitioner and respondent No. 4 both were the candidates for appointment on the post of Panchayat Karmi in the concerned Gram Panchayat, Garhi, Tahsil Baihar, District Balaghat. The resolution was passed on 17.08.2007, pursuant to which an order of appointment was issued in respect of respondent No. 4 appointing him as Panchayat Karmi and on such appointment the respondent No. 4 was notified as Secretary of the Gram Panchayat concerned. The petitioner, though was more meritorious according to the marks obtained by him in the qualifying examination, was not selected only because the selection of the respondent No. 4 was made per majority challenging the resolution of the Gram Panchayat, an appeal was fled by the petitioner before the Collector. The Collector, Balaghat after hearing the parties came to the conclusion that the resolution was not properly passed by the Gram Panchayat inasmuch as the petitioner had received 70.8% marks in Class-X examination whereas the respondent No. 4 has received only 61.69% marks. According to the merit the petitioner should have been selected and appointed. However, the resolution was passed dehors such scheme of giving benefit of merit to the petitioner, only because per majority selection of respondent No. 4 was made, therefore, said resolution was bad in law. As a result the appeal fled by the petitioner was allowed and Resolution No. 1 dated 17.08.2007 was set aside. The matter was remitted back to the Gram Panchayat to make appointment of the meritorious person. It was further ordered that the direction for appointment if not complied with by the Gram Panchayat, the Chief Executive Officer, Janpad Panchayat, Baihar will comply with that part of order in terms of the provisions of Section 86(2) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (herein after referred to as ''Act'').

The respondent No. 4 was not satisfied with the said order, therefore, he fled revision before the Additional Commissioner, Jabalpur Division, Jabalpur. The said revision came up for hearing on 21.11.2007, was heard finally and order was passed on 30.11.2007 setting aside the order of the Collector and giving liberty to the petitioner herein, who was respondent in the said revision, to challenge the order of appointment of respondent No. 4 in appropriate appeal before the appropriate Appellate Authority. This order is called in question in the present writ petition.

On consideration of the averments made in the writ petition, this Court while admitting the writ petition, granted an interim stay in favour of the petitioner. By fling a return, it is contended by the respondent No. 4 that in fact appeal fled by the petitioner before the Collector, Balaghat, was not maintainable in view of the fact that specific provisions are made under the statutory rules made by the State Government known as Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995 (herein after referred to as ''Rules''). Since such Rules are made in exercise of power given under the Act as also under the provisions of Section 91 of the Act where an appeal is provided, specific appellate authorities are prescribed under the said Rules, therefore, the appeal preferred by the petitioner was incompetent as the appellate authority in case of orders relating to Panchayat would be the Sub Divisional Officer and not the Collector. Other aspect is that the petitioner has never called in question the order of appointment of respondent No. 4. On the other hand he fled the appeal against the resolution of the Gram Panchayat. The said resolution was not challengeable in appeal as has been held by this Court in several cases and, therefore, the appeal was liable to be dismissed on this count alone. Instead the appeal was wrongly allowed by the Collector, Balaghat, which order was called in question before the Additional Commissioner, Jabalpur Division, Jabalpur, which revision has rightly been allowed giving liberty to the petitioner to file appeal against the order of appointment of respondent No. 4. That being so, the writ petition is liable to be dismissed.

The respondents No. 1 and 2 have also fled the return contending inter alia that since the appeal against the order of appointment alone in respect of a Panchayat Karmi was maintainable, which was to be fled before the competent Appellate Authority. The order passed in appeal of the petitioner against the resolution of Gram Panchayat was not sustainable. Erroneously the appeal was entertained, therefore, the order was rightly passed by the Additional Commissioner, setting aside the order of the Collector. Interference in the impugned order in these writ proceedings is not required or warranted. The submission is that the writ petition be dismissed.

Learned Counsel for the petitioner has vehemently contended that the issue has travelled to this Court that by raising hands or by casting the votes, selection is not to be made in respect of appointment of Panchayat Karmi by the Gram Panchayat. The selection is to be done in terms of the scheme made by the State Government and not otherwise. Since the respondent No. 4 was selected by cast of votes by the Gram Panchayat, in fact the appointment of less meritorious person was illegal. The intention of the petitioner was to challenge such action and, therefore, the appeal was rightly fled before the Collector, Balaghat. Relying in the case of Mahesh Jadhav Vs. State of M.P. and others, , it is contended by learned Counsel for the petitioner that the order was rightly passed by the Collector and illegal selection of respondent No. 4 was rightly set aside. Therefore, the order passed by the Collector was not to be interfered with by the Revisional Authority, i.e. the Additional Commissioner, Jabalpur Division, Jabalpur. In view of this, it is submitted that the order impugned is liable to be set aside.

Per contra it is contended by learned Counsel for respondent No. 4 that even if the resolution was passed by the Gram Panchayat illegally, that could not have been set aside by any authority except the High Court as the power to set aside a resolution of the Gram Panchayat is not prescribed under the Act. At the best the petitioner could have moved an application under Section 85 of the Act for suspension of the resolution if he was of the opinion that such a resolution was against the law or the instructions of the State Government. For that purpose also the power and jurisdiction is available with the Sub Divisional Officer of the area, who is required to look into such application under Section 85(1) of the Act and if after enquiry he reaches to the conclusion that such a resolution is to be suspended, he can pass such an order and to refer the matter to the Collector, the next higher authority, for approval of such an order. The next higher authority is required to exercise the power under Section 85(2) of the Act and in case such an order is affirmed, then only the resolution is pocketed for all time to come but is not to be set aside. It is not to be implemented or acted upon only. In view of this, the submission made is that the approach of the petitioner was bad as he has gone against the resolution in appeal before the Collector, though not provided. These aspects were rightly considered by the Additional Commissioner in the revision fled by respondent No. 4 and rightly illegal order of the Collector has been set aside, therefore, there is no need to interfere in the said order passed by the Additional Commissioner and the writ petition is liable to be dismissed.

After going through the orders so passed and after examining the law as also appreciating the dictum of law laid-down by this Court in the case of Mahesh s/o Mohan Jadhav (supra), the approach of the petitioner cannot be approved. True it is that selection for appointment on the post of Panchayat Karmi was not to be made by raising the hands or by casting the votes. It is also true that in the present case the notification for initiating the process for recruitment was issued on 30.07.2007. Even if there was no instructions for the Gram Panchayat to make selection of a candidate strictly on the basis of merit, it was necessary for the Gram Panchayat to assign the reason why a less meritorious person was selected. Nothing is pointed out in the said resolution nor the resolution has been placed on record either by the petitioner or by the respondent No. 4. In view of this justification of the resolution cannot be examined by molding the relief claimed by the petitioner in the present writ petition as it cannot be treated as if the said resolution is sought to be challenged before this Court. As far as the appeal against the resolution is concerned, in the well pronounced law in the case of Ram Lakhan Rawat Vs. State of M.P. and Others, , all aspects have been examined and it has been held by this Court that a resolution is not an order and, therefore, is not appellable before any authority. Even otherwise if the resolution was to be called in question, the proceedings should have been done before the appropriate authority as prescribed under the Act and not otherwise. Admittedly the Collector of the District is not an appropriate authority in the matter or the orders passed by the Gram Panchayat. The said authority is Sub Divisional Officer of the area where the Gram Panchayat is situated. The Division Bench of this Court has also looked into these aspects in the case of Devidayal Raikwar Vs. State of M.P. and Others, and has reached to the conclusion that the resolution of a Gram Panchayat can be suspended but cannot be set aside. Therefore, the submission made by learned Counsel for the petitioner that appeal against the resolution of the Gram Panchayat was maintainable before the Collector, Balaghat, cannot be accepted.

The other aspect is when the revision was fled by respondent No. 4 against the order of Collector dated 07.11.2007, the said revision was considered only in view of the law laid-down by this Court and the order passed by the Collector, Balaghat, was set aside. However, all other facts were not considered by the Revisional Authority, rather challenge to the order of appointment of respondent No. 4 was left open by the Revisional Authority inasmuch as it was directed that in case an appeal is fled by the petitioner herein, who was respondent in the said revision, against the order of appointment of respondent No. 4 within a month before the appropriate Appellate Authority, the same would be decided on merits instead of dismissing the same on the technicalities of limitation. The well reasoned order passed by the Additional Commissioner for putting at naught an illegal and beyond the jurisdiction order of the Collector was not to be challenged in a writ petition by the petitioner, rather he should have fled an appeal against the order of appointment of respondent No. 4. In that case he could have raised the grounds as have been raised before the Appellate Authority or in the present writ petition and the Appellate Authority was required to decide the said appeal in appropriate manner. In the case of Mahesh s/o Mohan Jadhav (supra), facts and circumstances were slightly different inasmuch as the order passed by the Appellate and Revisional Authorities were set aside by the second Revisional Authority, i.e. the State Government, without even granting liberty to the petitioner in that case to resort to the remedy available under the law in the matter of illegal appointment. That being so, the ratio laid-down by this Court in the case of Mahesh s/o Mohan Jadhav (supra) would not be attracted squarely in the case of the petitioner, who though was given the liberty to file the appeal before the competent Appellate Authority, has not resorted to the remedy of appeal in appropriate manner. Unnecessary this writ petition was fled against order dated 30.11.2007 after a long lapse of six years, that too without resorting to the remedy available under the law.

In view of the aforesaid, the present writ petition cannot be entertained. The order impugned passed by the Additional Commissioner was just and proper, therefore, the same has to be and is hereby affirmed.

The writ petition stands dismissed. However, since the order of appointment of respondent No. 4 was said to be bad in law on account of not making proper selection, if the petitioner is so advised, he may resort to the remedy of appeal before the competent Appellate Authority in terms of the Rules as per the liberty granted by the Additional Commissioner within a month from today. If such an appeal is fled along with an application for condonation of delay explaining the period of delay as also excluding the period of pendency of the present writ petition before this Court and if the Appellate Authority is satisfied with the explanation for delay, extended by the petitioner, the said authority may entertain the appeal of the petitioner.

In the peculiar circumstances of the present case, there shall be no order as to costs.