Maya Devi (Smt.) vs State of M.P. and Others

Sanjay Yadav, J.—With consent of Learned Counsel for the parties the matter is heard finally. Petitioner questions the correctness of the order dated 31.7.08 passed by Additional Commissioner Sagar, Division Sagar; whereby, revision preferred by respondent No. 8 against an order dated 9.7.07 passed by Collector Panna, has been set aside and the order dated 3.2.06 passed by Sub Divisional Officer Panna, was restored being facilitating the appointment of respondent No. 8 as Panchayat Karmi, Gram Panchayat Ranjurpura, Janpad Panchayat Shahnagar, District Panna.

The appointment of Panchayat Karmi Gram Panchayat Ranjurpura, was in pursuance to the Advertisement dated 19.5.06 issued by Chief Executive Officer Janpad Panchayat Shahnagar. In pursuance thereto 20 applications were received and proceedings were drawn by Gram Panchayat and merit list was prepared wherein the petitioner with 49% was placed at serial No. 1 and respondent No. 8 with 48% at serial no. 2. Gram Panchayat vide resolution dated 20.6.02 on the basis of majority appointed respondent No. 8 on the basis of Panchayat Karmi. The appointment was assailed by the petitioner before Sub Divisional Officer who negatived the challenge by order dated 3.2.06.

In a revision before Collector, (though mentioned as Appeal) Collector by his order dated 9.7.07 set aside the order passed by Sub-Divisional Officer as well as the order of appointment of respondent No. 8 on recording a finding that the Gram Panchayat committed an error in giving appointment to respondent No. 8 on the basis of majority, accordingly, Collector remitted the matter to the Gram Panchayat to reconsider the appointment on the post of Panchayat Karmi on the basis of merit.

Respondent No. 8 being aggrieved by order passed by Collector filed a revision before Additional Commissioner, Panna, who by reviving the order passed by Sub Divisional Officer, directed for the appointment of respondent No. 8 on the post of Panchayat Karmi. Commissioner dismissed the appeal on the technical ground that the Collector was not competent to hear Second Appeal against an order passed by Sub-Divisional Officer in an appeal preferred against the resolution passed by Gram Panchayat.

The order dated 31.7.08 is being challenged on the ground that since it was within the competence of Collector to hear revision against the order passed by Sub Divisional Officer in an appeal, a wrong mention of the provision did not disentitled him to hear the revision and the Additional Commissioner fell into patent error in holding that the order passed by Collector was without any jurisdiction.

In the considered opinion of this Court there is a considerable force in the submissions put forth by Learned Counsel for the petitioner.

Admittedly, a resolution and an appointment order passed by Gram Panchayat appointing a Panchayat Karmi is assailable under M.P. Panchayat (Appeal and Revision) Rules 1995, (hereinafter to be referred to as Rules of 1995). (Please see Devidayal Raikwar Vs. State of M.P. and Others, .

Rule 5 of Rules of 1995 stipulates that

5-The Collector may on its/his own motion or on the application by any party, at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceeding of the authority subordinate to it/him call for and examine the record of any case pending before, or disposed of by such authority and may pass such order in reference thereto as it/he may this fit.

Therefore, the Additional Commissioner was not justified in holding that it was beyond the competence of Collector, to have considered the challenge to an order passed by Sub Divisional Officer. Merely because the challenge was nomenclature as an appeal will not in the considered opinion of this Court denude the Collector of the power to hear the same as it was well within its power under Rule 5 of the Rules of 1995.

The next question is as to whether the Gram Panchayat was justified in selecting respondent No. 8 on the basis of majority of votes. The issue need not detain us, as the same has been settled at rest by Division Bench of this Court in Suresh s/o Laxman Rathod v. Chief Executive Officer, Zila Panchayat

2011 (4) MPLJ 71; wherein it is held-

9- So far as the appellant''s contention that he could have been appointed as Panchayat Karmi on the basis of the majority of votes in view of the Circular dated 27-1-2006 which was prevailing at the time of making of his appointment is concerned, we find no merit in this submission. In the circular dated 27-1-2006 it was provided that the list of all the applications received by the Gram Panchayat for the said post was to be prepared by the Gram Panchayat on the basis of seniority and merit. It further provided that after preparation of such list, the eligible candidate, as per seniority of such list, was to be appointed. Therefore, in our considered view as per the Scheme of appointment of Panchayat Karmi the merit was required to have been observed even as per the Circular dated 27-1-2006 which was in vogue when the appellant was appointed. The contention of the learned Senior Counsel for the appellant that in making the appointments prior to the Circular dated 13-8-2007 there was no necessity of observing of merit is, therefore, wholly misconceived. We find that in the present case ignoring the merit the appointment was made by the Gram Panchayat only on the basis of majority of votes. In such circumstances the appellant''s appointment which was made giving complete go bye to the merit could not have been sustained and the same has rightly been set aside by the learned Single Judge and the matter has rightly been remanded to the Gram Panchayat for passing fresh resolution on the basis of merit.

In view whereof, the conclusion drawn by the Collector that the selection of respondent No. 8 on the basis of majority was not in consonance of the policy of the State Government, cannot be faulted with. Therefore, vide setting aside impugned order dated 31.7.08 passed by Additional Commissioner Sagar, Division Sagar, respondent No. 6 is directed to comply with the direction given by the Collector by his order dated 9.7.07. It is further directed that respondent No. 6 shall adhear to the time schedule as is prescribed u/s 85 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam 1993. The petition is allowed to the extent above. However, no costs.