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Judgment
The petitioner before this Court is aggrieved by the order
dated 18.6.2012 passed by the Additional Commissioner, Rewa
whereby the order dated 30.11.2010 passed by the Sub Divisional
Officer and the order dated 18.7.2011 passed by the Collector has
been set aside and has further set aside the resolution dated 1.3.2006
by which the petitioner was appointed as Panchayat Karmi, Gram
Panchayat, Rajarwar.
In brief the facts of the case are that the petitioner and the
respondent No.6 participated in the selection process of Panchayat
Karmi in respect of Gram Panchayat, Rajarwar and after their
applications were vetted, a resolution dated 1.3.2006 was passed by
the Gram Panchayat by majority whereby the petitioner was
appointed on the post of Panchayat Karmi. Consequently, the
appointment order was also issued in favour of the petitioner by the
Sarpanch and subsequently he was appointed as Secretary of Gram
Panchayat, Rajarwar by Collector vide order dated 28.3.2006.
The resolution dated 1.3.2006 passed by Gram Panchayat
Rajarwar was challenged by the respondent No.6 before the Sub
Divisional Officer, who vide order dated 15.9.2006 dismissed the
appeal preferred by the respondent No.6 on the ground amongst
other that an appeal is not maintainable against a resolution passed
by the Gram Panchayat.
The aforesaid order dated 15.9.2006 was challenged by
the respondent No.6 before this Court in W.P. No.18486/2006 and
this Court, vide order dated 16.12.2009 disposed of the petition with
liberty to respondent No.6 to prefer the appeal against the order of
appointment of the petitioner passed by the Sarpanch of Gram
Panchayat Rajarwar. In furtherance thereof, the respondent No.6
preferred an appeal against the order of Sarpanch before the Sub
Divisional Officer, who vide order dated 30.11.2010 has dismissed
the appeal holding that the scheme of 1995 gives ample power to
Gram Panchayat to appoint Panchayat Karmi and the guidelines
issued on 13.8.2007 in which appointments are to be made as per
merit was not applicable as the petitioner''s appointment was made
on 1.3.2006 i.e. prior to coming into force of the aforesaid
guidelines.
Being aggrieved by the order passed by the S.D.O., the
respondent No.6 challenged the same before the Collector, Satna,
who also dismissed the appeal and upheld the order passed by the
S.D.O. vide order dated 18.7.2011. Against the aforesaid order dated
18.7.2011, the respondent No.6 again preferred an appeal before the
Additional Commissioner, Rewa, who vide his order dated
18.6.2012 has reversed the orders passed by the Collector and the
Sub Divisional Officer and has also set aside the resolution of Gram
Panchayat Rajarwar appointing the petitioner as Panchayat Karmi
and has remanded the matter back to Gram Panchayat to reconsider
the 25 applications received for the appointment on the post of
Panchayat karmi afresh. Against this order dated 18.6.2012 passed
by the Additional Commissioner, the present petition has been
preferred.
Learned counsel for the petitioner has submitted that the
Additional Commissioner has exceeded its jurisdiction in passing
the impugned order for the reason that no third appeal was
maintainable before him against the order passed by the Collector as
the respondent No.6 had already exhausted two appeals as provided
under the Madhya Pradesh Panchayat Raj Avam Gram Swaraj
Adhiniyam. It is further submitted by the counsel for the petitioner
that as per the Panchayat Karmi Yojana, 1995 the concerned Gram
Panchayat was allowed the discretion to appoint Panchayat Karmi
and in exercise of the aforesaid powers the appointment has been
made by passing the resolution and it is also submitted that the
guidelines issued on 13.8.2007 in which appointments are to be
made as per merit was not applicable as the appointment was made
on 1.3.2006. Thus, the interference made by the learned Additional
Commissioner while exercising jurisdiction which was not vested in
it is liable to be set aside.
On the other hand, the learned counsel for the respondent
No.6 has submitted that the appeal against the order of the Collector
is maintainable before the Additional Commissioner and has drawn
the attention of this Court to the provisions of rule 3 of the M.P.
Panchayat (Appeal and Revision) Rules, 1995 and has submitted
that any order passed by the Collector under any of the provisions of
these Rules/Act shall be appealable before the Additional
Commissioner, hence no challenge can be made to the competence
of the Additional Commissioner in passing the impugned order. It is
further submitted by the learned counsel for the respondent No.6
that the respondent No.6 was more meritorious candidate belonging
to scheduled caste and was on the top of the merit list but his merits
have been ignored while appointing the petitioner arbitrarily on the
post of Panchayat Karmi. It is further submitted that in the order
dated 1.3.2006 passed by the Sarpanch reference has been made to a
circular dated 27.1.2006 on the basis of which the Gram Panchayat
Rajarwar has passed the resolution, in this circular dated 27.1.2006
which is filed as Annexure R-6/3 which also provides that the
applications be scrutinized in the order of merit.
Heard learned counsel for the parties and perused the
record.
So far as the question of maintainability of the third appeal
before the Additional Commissioner is concerned, Section 91 of the
Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam,
1993 provides for appeal and revision which reads as under :
"91. Appeal and revision. - An appeal or revision against the orders or proceedings of a Panchayat and other authorities under this Act, shall lie to such authority and in such manner as may be prescribed."
Accordingly, Rule 3 of the Madhya Pradesh Panchayats (Appeal & Revision) Rules, 1995 provides as under :-
"3. Appeal and appellate authorities. Save where it has been otherwise provided in the Act or rules or bye-laws made thereunder, an appeal shall lie, -
(a) in the case of an order passed by the Sub-Divisional Officer under any provision of the Act or rules or byelaws made thereunder - to the Collector.
(b) in the case of an order passed by the Collector under any provision of the Act or rules or bye laws made thereunder - to the Commissioner.
(c) in the case of an order passed by the Commissioner or Director of Panchayats - to the State Government.
(d) in the case of an order passed by the Panchayat specified in Column (1) of the Table below - to the authority specified in the corresponding entry in column (2) thereto.
TABLE
(1) (2)
(a) Gram Panchayat Sub-Divisional Officer.
(b) Janapad Panchayat Collector.
(c) Zila Panchayat Commissioner."
(emphasis supplied)
It is apparent from the aforesaid Rule 3(b) that in the case of an
order passed by the Collector under any provision of the Act or rules
or bye laws made thereunder an appeal shall lie to the
Commissioner. It is also clear from these Rules that there is no such
provisions specifically precluding the filing of the third appeal
before the Commissioner. At this juncture, reference may be made
to Section 100A and Section 102 of the Code of Civil Procedure,
1908, which provide as under :-
"100.A No further appeal in certain cases. - Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge. 102. No second appeal in certain cases. - No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees."
Drawing an analogy, there are no provisions in the M.P. Panchayat
Raj Avam Gram Swaraj Adhiniyam, 1993 or the Madhya Pradesh
Panchayats (Appeal & Revision) Rules, 1995 which precludes the
filing of an appeal before the Commissioner from the order of the
Collector even if it is considered as third appeal.
The judgment cited by the learned counsel for the
petitioner in the case of Mamta Pateria and others vs. State of
Madhya Pradesh and others, reported in (2002) 4 MPLJ 196 is
to submit that no third appeal is maintainable before the Additional
Commissioner, is not applicable in the facts and circumstances of
the case as in the aforesaid judgment this Court in para 20 has
clearly set out the field in which the aforesaid judgment is passed
by specifically observing that rule 3 provides for an appeal and
appellate authorities regarding which there was no issue in the
aforesaid petition and it is further observed that rule 5 which refers
the revision is being considered wherein it was held that rule 5 of the
Panchayats (Appeal and Revision) Rules, 1995 makes it clear that
only one revision lies either to the State
Government/Commissioner/Directorate of Panchayat/Collector and
the power given is concurrent. It does not enable filing of second
revision against the revisional order passed by the Commissioner or
Collector or by the Director of Panchayat. Thus it was held that
second revision is not maintainable. It was not an issue before this
Court in this judgment that whether third appeal is maintainable
against the order passed by the Collector before the Additional
Commissioner. Similarly, in the case of Ram Lakhan Rawat vs.
State of Madhya Pradesh and others, 2000 (2) MPLJ 176, the
finding of this Court is confined to maintainability of the revision
and has held that appellate orders will be revisable and it is held that
any order passed in appeal is amenable to revision under Rule 5 of
the Rules.
It is further submitted by the learned counsel for the
petitioner that in the case of Chandrapal Yadav Vs. State of M.P.
and others passed in W.A. No.651/2013 decided on 6.1.2016, this
Court has held that the appointment of Panchayat Karmi of the
Gram Panchayat as Panchayat Secretary, prior to coming into force
of the statutory Rules named as Madhya Pradesh Panchayat Service
(Gram Panchayat Secretary Recruitment and Conditions of Service)
Rules, 2011, was a pleasure appointment and hence no interference
is required in the resolution as also the order passed by the Sub
Divisional Officer and Collector. A careful reading of the judgment
also reveals that this Court has not held that the powers of Gram
Panchayat are unfettered.
The learned counsel for the respondent No.6 has relied
upon the judgment of this Court in the case of Mahesh S/o Mohan
Jadhav vs State of M.P . reported in 2010 (3) MPLJ 470 wherein
this Court has held that for appointment of Panchayat Karmi, merits
cannot be ignored. Learned counsel has further relied upon an
unreported judgment of this Court passed in Writ Petitin
No.3885/2009 decided on 4.1.2017 wherein also the order passed
by the Commissioner in appeal was under challenge and this Court
has quashed the order passed by the Commissioner by relying upon
the Division Bench judgment of this Court in the case of Suresh vs.
Chief Executive Officer & Others, ILR [2012] M.P., 698
wherein also after considering circular dated 27.1.2006 this Court
has held that that merits cannot be ignored.
Adverting to the merits of the case, the Commissioner has
already found that the respondent No.6 had secured more marks than
the petitioner and this Court does not find any error in such finding
and even the petitioner has not disputed this fact.
Taking into account the rival contentions of the parties,
this Court is of the considered opinion that the petition is liable to be
dismissed as the order passed by the Additional Commissioner is in
line with the circular dated 27.1.2006 and also settled principles of
law favouring merits of a candidate.
This Court is also aware that a considerable time has
already been spent in this litigation, hence it would be expedient to
further direct the Gram Panchayat to comply with the order passed
by the Commissioner on 18.6.2012 within a period of four weeks
from the date of receipt of the certified copy of this order. No order
as to costs.
The petition is dismissed accordingly. No cost.