Ram Narayan vs Prabhu

Sanjay Yadav, J—With consent of learned counsel for the parties the matter is heard finally.

Order dated 6.8.2013 passed by Board of Revenue is being called in question vide this petition under Article 227 of the Constitution of India.

Vide impugned order the Board of Revenue has negatived the challenge by the petitioner to the order dated 2/6/2007 passed by passed by Additional Commissioner, Sagar Division, Sagar in an appeal directed against the order dated 26.5.2003 reversing the order passed by Sub Divisional Officer, Rehli, affirming appointment of the petitioner on the post of Kotwar.

Background facts giving rise to controversy briefly are that one Jagdish S/o Rajju Chadar, Kotwar of Rehli Khas was removed from the post of Kotwar for having found guilty of misconduct. Removal gave rise to vacancy of Kotwar of Rahli Khas whereon proceedings were initiated in pursuance to requisition by Patwari Halka No. 21, Tahsil Rehli dated 23.1.2002. Responding to the notice for appointment, five applicants applied for the post of Kotwar, viz, Mst. Archana W/o Jagdish Chadar, Prabhu S/o Rajaram Chadar, Hemant S/o Shri Shaligram and Jamal Khan S/o Bhure Khan.

Selection proceeding was drawn vide Revenue Case No. 5 /56/2001-02 whereon character verification was sought of each of the applicants; wherein, as regard to Hemant S/o Shaligram the same was in negative. The Character verification of Mst. Archana was not received. Whereas the character verification of Prabhu S/o Rajaram Chadar, Ramnarayan S/o Kallu Chadar and Jamal Khan S/o Bhure Khan was found to be alright.

Consequent thereon, the Tahsildar in exercise of powers under Section 230 of Madhya Pradesh Land Revenue Code, 1959 and the Rules framed under Section 258 of the Code regarding appointment, punishment and removal of Kotwars vide notification No. 211-6477-VII-N (Rules), dated 6th January, 1960; as amended by Notification No. 4992-136-VIIN-1, dated the 11th September, 1964, Notification No. 2578-1463-VII-N-1, dated 15th June 1966, Notification No. F.2-20-VII-Sec.8-95, dated 17th March 1997 and Notification dated 20.11.2001, found the petitioner eligible for appointment as Kotwar, Village Rehli Khas vide order dated 22.5.2002.

That, respondent No. 1 assailed the order of appointment before Sub Divisional Officer vide Appeal No. 26/v-56/2001-2002, the appellate authority vide order dated 26.5.2003 affirmed the appointment of the petitioner by rejecting the appeal. However, the order was reversed in a second appeal by Additional Commissioner by order dated 2.6.2007 on the ground that while examining respective candidates opportunity for cross-examination has not been given to others and that earlier Kotwar who was removed from service has not been shown to have been removed in accordance with Rules. The order having been affirmed in a revision preferred before the Board of Revenue has led the petitioner to file this petition calling upon the correctness and validity of the order dated 2.6.2007 passed by Additional Commissioner and its affirmation by Board of Revenue by order dated 6.8.2013.

Challenge is on the ground that the Second Appellate Authority on extraneous consideration had set aside the order of appointment which was strictly on the basis of provisions contained under Section 230 of the Rules framed thereunder and on merit. It is contended that the Rules nowhere provide for affording an opportunity of cross-examination in the process of appointment. It is also contended that it was not even the case before the Second Appellate Authority as to whether the removal of earlier Kotwar was improper as the removal was not the subject matter of challenge before the Second Appellate Authority. It is further contended that even Board of Revenue fell into gross error in affirming the order passed by Second Appellate Authority infest with extraneous consideration. It is submitted that the order does not stand the judicial scrutiny and deserve to be set aside and the order passed by Tahsildar and its affirmation by the Sub Divisional Officer deserves to be restored.

The respondents on their turn have supported the order. Considered the rival submissions.

Section 230, 1959 Code make a provision as regards to appointment of Kotwar and their duties. It stipulates that for each village or group of villages, they shall be appointed, in accordance with rules made under Section 258, one or more kotwars for the performance of such duties as may be prescribed.

Section 258 envisages general rule making power of the State Government.

That, the State Government in exercise of such powers vide notification dated 6th January 1960 and modified from time to time has framed Rules regarding appointment, punishment and removal of Kotwars and their duties.

Rule 2 of the Rules provides for that no person shall be eligible for the post of Kotwar, who (i) in the opinion of the appointing authority is not of good character and antecedents; (ii) in the opinion of the appointing authority is unfit through infirmity of body or mind, to perform the duties of the post; and (iii) is below the age of 21 years.

Rule 3 of the Rules envisages that the power of appointment of Kotwar shall rest with the Collector, Sub-Divisional Officer, Assistant Collector of the first grade, Assistant Collector of the second grade if specifically empowered by the Collector in this behalf. Tahsildar or Naib Tahsildar who is empowered to exercise the powers of a Tahsildar under Sub-section (2) of Section 24 of the Madhya Pradesh Land Revenue Code, 1959.

In the case at hand perusal of the proceedings as drawn by Tahsildar, Rahli forming subject matter of Revenue Case No. 5 /56/2001-02 reflects that after inviting application and the character verification report of the respective applicants, Tahsildar, took recourse to examine the character and antecedents of respective candidates and comparative merit. Wherein, the petitioner was found to be more suitable and was accordingly appointed as Kotwar.

The only reason on which the appointment has been set aside by the Second Appellate Authority as find mention in paragraph 3 of the order dated 2.6.2007 is extracted below:

Apparently, it is not the merit of respective candidates which weighed with the second appellate authority in interfering with the appointment of the petitioner but it has been on the ground that respective candidates were not given opportunity to cross-examine, which is alien to the Rules framed under Section 258 of 1959 Code. Rule 2 of 1959 Rules, which lays down the eligibility criteria is in negative form, i.e., persons does not having good character and antecedents and that he is unfit through infirmity of body or mind and is below 21 years of age cannot be appointed as Kotwar. There is no provisions in the Rules as would require cross examination of respective candidates. The consideration by the appellate authority is, therefore, extraneous to the stipulations contained in the Rules which cannot be given the stamp of approval.

Further reason which weighed with the Second Appellate Authority has been that the erstwhile Kotwar, who was removed from service was not validly removed. It is beyond reproach as to how the removal of erstwhile Kotwar could be a ground for adjudging the appointment of Kotwar on a post falling vacant because of removal as the removal order was not under challenge before the second appellate authority. This reason also does not withstand the judicial scrutiny as it was not the case before the second appellate authority that erstwhile Kotwar has been unauthorizedly removed with non-challenge of his removal. The erstwhile Kotwar had allowed his removal to attain finality which, in the considered opinion of this Court, could not have been the ground for setting aside the appointment order of the petitioner.

Thus, the finding arrived at by the Second Appellate Court and affirmed by Board of Revenue suffers from the vice of perversity as would be allowed to remain in the books.

Consequently, the order dated 2.6.2007 as also the order passed by the Revenue Board on 6.8.2013 are hereby set aside. Corollarily the order passed by the Tahsildar and its affirmation by the Sub Divisional Officer stands revived. The petition is allowed to the extent above. There shall be no costs.