ARCHANA TIWARI Vs. STATE OF M P

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed seeking to challenge the order dated 2-8-2008 passed by the respondent No. 2 allowing the revision of the respondent No. 6. It is contended that since such an order is bad in law in view of the fact that well reasoned findings of the Collector have been disturbed and a person who was facing a criminal prosecution on the date of making application, is directed to be appointed on the post of Panchayat Secretary, therefore, the order is liable to be quashed. Hence, this writ petition is required to be filed. The facts giving rise to filing of this petition, in brief, are that the petitioner and the respondent No. 6 were the candidates for appointment on the post of Panchayat Karmi pursuant to an advertisement issued by the Gram Panchayat. The resolution was already passed by the Gram Panchayat to the effect that only those who are having the merit and who are having the clean record would be considered for selection. It was specifically provided that if a candidate is facing any criminal prosecution, he/she would not be entitled to take part in selection. After preparation of the merit list when the matter was placed before the Gram Panchayat for consideration, since the respondent No. 6 was to be favoured, the then Sarpanch of the Gram Panchayat acted illegally. There were differences between the members of the Panchayat and therefore, no such selection could be made. The entire proceedings were written on 31-8-2007 and the matter was referred to the Collector under section 86(2) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as "the Act") for making selection. The Collector directed the Chief Executive Officer of the Janpad Panchayat to make a selection out of the candidates who have applied and since the petitioner was selected for appointment, the order of appointment was issued in her favour on 13-12-2007, pursuance to which she gave joining and started working.

(2.) Being aggrieved by the appointment of the petitioner, the respondent No. 6 preferred an appeal before the Collector which came to be heard and decided on 11-3-2008. After considering the facts as have been pointed out, the Collector reached to the conclusion that not only the respondent No. 6 was facing a criminal prosecution for the offence punishable under sections 147, 148, 149, 294, 323, 325, 506-B and 448 of the Indian Penal Code in the court of law but he was also not the local resident of the village. On the other hand the respondent No. 6 was a resident of Sagar. After holding that the selection was rightly done, the appeal filed by the respondent No. 6 was dismissed. Feeling aggrieved by the order of the Collector, the respondent No. 6 preferred revision before the Additional Commissioner, Sagar Division, Sagar and since now the said revision has been allowed with a direction to appoint the respondent No. 6, this writ petition is required to be filed.

(3.) It is contended by the petitioner that the entire process of considering the revision by the respondent No. 2 is vitiated inasmuch as unless there is a question of law involved, the revisional power under Rule 5 of the M.P. Panchayat (Appeal and Revision) Rules, 1995 (hereinafter referred to as "the Rules") was not to be entertained. It is further contended that the respondent No. 6 was guilty of suppression of material fact in his application for appointment and therefore, the application was rightly rejected. Apart from this, the application was not submitted by the respondent No. 6 within the last date prescribed for submitting such application and this fact is further proved by the return filed by the Gram Panchayat before this Court, therefore, the order passed by the revisional authority is liable to be quashed.