PRAHLAD DAS Vs. STATE OF M P

JUDGEMENT

(1.) This petition is directed against the order dated 15.12.2009 passed by the Collector, Dindori, in an appeal preferred by respondent No.7, by which the appointment of the petitioner as Panchayat Karmi in Gram Panchayat, Dullopur, Block Bajag, District Dindori, has been cancelled, on the ground that the appellate authority has not properly considered the fact that rightful consideration was done by the Chief Executive Officer of Janpad Panchayat, who was directed to take action for appointment of Panchayat Karmi, because the respondent Gram Panchayat was not taking any steps in this respect. The procedure of appointment was duly followed and as such the order of appointment of the petitioner is illegally interfered with by the appellate authority. Thus the order impugned is bad in law.

(2.) It is contended that vide advertisement dated 08.05.2006, the Chief Executive Officer of Janpad Panchayat, Bajag, invited applications for appointment on the post of Panchayat Karmi categorically contending that since the direction was given in exercise of powers under Section 86(1) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (herein after referred to as 'Act') for making appointment of Panchayat Karmi to the Gram Panchayat and since the Gram Panchayat has failed to comply with the directions, in exercise of powers under sub-section (2) of Section 86 of the Act, the Chief Executive Officer was required to act in this respect. The qualification, eligibility conditions etc. were mentioned in the advertisement. The application was submitted by the petitioner, which was duly considered. A merit list was prepared in which the name of the petitioner was put at S.No.1 as he has secured the highest marks in the qualifying examination. Considering the merits drawn by the Chief Executive Officer, the matter was referred to the higher authorities for approval and an order of appointment was issued in respect of the petitioner. Such an order was called in question before the Collector but instead of considering the entire procedure as laid-down, mechanically the Collector reached to the conclusion that the preference was required to be given to the reserved category candidate. Further it was wrongly considered that since the petitioner was holding the post of Panch in the very same Gram Panchayat, he could not have made an application for his selection as Panchayat Karmi, therefore, it is held that the order of appointment of petitioner was illegal. It is contended that since the petitioner had already tendered the resignation, which was subsequently accepted, the candidature of the petitioner was not to be rejected. This being so, the findings were incorrectly recorded by the Collector and as such the order impugned is bad in law and is liable to be quashed.

(3.) Upon notice of the writ petition, the respondents have filed return. The respondent-State has contended that the writ petition is not maintainable in view of the fact that there is a statutory remedy of revision available under the Madhya Pradesh Panchayat (Appeal & Revision) Rules, 1995, which has not been resorted to by the petitioner and as such the petition is liable to be dismissed. It is further contended that fact relating to holding of post of Panch by the petitioner in very same Gram Panchayat was found proved. Admittedly, the application was submitted by the petitioner pursuant to the advertisement well before the date of tendering the resignation. Even if resignation submitted by the petitioner subsequently was accepted, it cannot be said that the petitioner was not holding the post of Panch on the date when he made application for selection on the post. In view of the aforesaid, the Collector has rightly interfered in the order of appointment of petitioner and has rightly set aside the same by allowing the appeal of respondent No.7. It is contended that entire petition being based on misleading and misconceived facts, is liable to be dismissed.