MUKESH PRASAD Vs. STATE OF M P

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India has been filed calling in question the order dated 30-12-2008 (Annexure P-20) by which while allowing the appeal of respondent No. 6, it has been held by the Commissioner, Shahdol Division, Shahdol, that the order passed by the Collector allowing the appeal of the present petitioner is set aside and the appointment of respondent No. 6 is required to be made in terms of the provisions of section 69(1) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as Act).

(2.) The main contentions of the petitioner are that an advertisement was issued for making appointment of Panchayat Karmi by the Gram Panchayat, Karondi, District Anooppur on 9-7-2007. The last date for filling the forms was mentioned in the said advertisement. However, it appears that the respondent No. 6, who was at the relevant time holding the post of Sarpanch of the very same Gram Panchayat, was also willing to take part for selection on the post of Panchayat Karmi and for that particular object, after giving a notice of resignation from the post, another advertisement was got issued vide Annexure P-8 in which the last date for submitting the application form was fixed on 30-8-2007. It is contended by the petitioner that fraudulently a resolution was said to be passed stating that the resignation of respondent No. 6 is accepted. A resolution was passed for making appointment of persons on the post of Panchayat Karmi and on the basis of such a resolution the respondent No. 6 was said to be selected and an order of appointment was issued. It is further contended that the matter was complained with respect to such illegalities being committed before the Collector, Anooppur, who took the matter in his consideration, issued the orders directing the competent authority to make selection and recommended the right person to be appointed on the post of Panchayat Karmi. Pursuant to this, applications so submitted before the Panchayat were screened, merit list was drawn and recommendations were made for appointment of persons like petitioner. Since such an order was issued by the Collector, Anooppur on 29-5-2008, a writ petition was filed before this Court by the respondent No. 6. Later an appeal was filed before the Commissioner, Shahdol Division by the respondent No. 6 and since such an appeal has been allowed, the petitioner is required to file present writ petition. In view of the aforesaid, the petitioner has claimed the relief of quashing of the order passed by the Commissioner, Shahdol.

(3.) This Court entertained the writ petition. Notices were issued to the respondents and separate returns have been filed by them in response to the notice of writ petition. The respondents No. 1 to 3 have filed a return saying that since the order has been passed by the appellate authority in exercise of quasi-judicial powers, no reply of the writ petition is required to be filed. The respondent No. 4 has also supported the claim made by the respondent No. 6. The respondent No. 6 has filed a detailed return contending that though he was working as Sarpanch at the relevant time but he subsequently submitted the resignation, made an application for grant of appointment as Panchayat Karmi and since he was selected in terms of the resolution passed by the Gram Panchayat, he was rightly appointed as Panchayat Karmi. There was no occasion for the respondent No. 3 to exercise the power under sub-section (2) of section 86 of the Act inasmuch as the Gram Panchayat has already complied with the instructions of the State Authority. It is, thus, contended that it was beyond the jurisdiction of respondent No. 3 to make any fresh appointment as if the Gram Panchayat has not complied with the instructions and, therefore, action was rightly taken by the respondent No. 6 for filing of an appeal against such an order and the appeal having been allowed, illegal order said to be passed by the respondent No. 3 has rightly been set aside. Thus, it is contended that the interference in an order passed was not called for and the order passed by the appellate authority is required to be affirmed. Thus, a prayer is made for dismissal of the writ petition.