THANWARIN Vs. NAIB TAHSILDAR FINGHESHWAR

JUDGEMENT

(1.) THE circumstances in which this petition under Article 226 of the Constitution has been filed are that on the death of her husband, Sukhram, who was the Kotwar of five villages, namely, Gunderdei, Bamhandei, Bangawa, Tarjunga and Lohjhar, the petitioner applied for being appointed as Kotwar of all the five villages in place of her deceased husband. THE Naib-Tahsildar, taking the view that a woman could not be appointed as a Kotwar, proceeded to invite applications for the vacancy in accordance with rule 4 of the Rules framed under section 258 read with section 230 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter called the Rules), governing the appointment, duties etc. of Kotwars. In response to this invitation, two persons Mangloo and the non-applicant No. 5, Rameshwar, applied. Mangloo claimed that he was a relative of the deceased Sukhram having married his sister. THE Naib-Tahsildar found Rameshwar better qualified both in experience as well as educationally than Mangloo, and accordingly made an order appointing Rameshwar as the Kotwar.

(2.) THE petitioner and Mangloo then preferred an appeal before the Sub-Divisional Officer, Gariaband, against the order of the Naib-Tahsildar contending that Mangloo should have been preferred for the appointment. This appeal was allowed by the Sub-Divisional Officer solely on the ground that Mangloo was a near relative of the deceased, and if appointed as a Kotwar he would be able to maintain the family of the deceased Sukhram. Rameshwar then went up in appeal before the Commissioner, Raipur Division, which was allowed, and the order of the Naib-Tahsildar was restored. THE Commissioner found that Mangloo was no more nearly related to the deceased Kotwar than Rameshwar and that he had better qualifications for the appointment. THEreafter the petitioner and Mangloo preferred a revision petition before the Board of Revenue, which was rejected. Before the Board of Revenue, the petitioner contended that clause (iv) of Rule 2 of the aforesaid Rules making a woman ineligible for the post of Kotwar was repugnant to Article 15 of the Constitution and, therefore, invalid. On this point, the Board observed that it had no power to decide whether the said clause was ultra vires the Constitution. It was also submitted by the petitioner before the Board of Revenue that Mangloo should have been selected for the post of Kotwar as he was a near relative of the deceased Sukhram. Rejecting this contention the Board observed that the contention was based on the mistaken assumption that rule 4 (2) of the Rules gave right to a relative of the ex-Kotwar for appointment as Kotwar; that according to the Rules the selection was to be made primarily on the basis of merit; and that it was only if in respect of suitability for the post the claimants were of equal merit that perference might be given to a near relative. THE Board, agreeing with the finding of the Naib-Tahsildar and the Commissioner that Rameshwar was more suitable for appointment than Mangloo as he was better educated and had some experience of working as Kotwar, upheld the decision of the Commissioner. THE petitioner now prays that a writ of certiorari be issued for quashing the decisions of the Naib-Tahsildar, the Commissioner and the Board of Revenue, and the Naib-Tahsildar be directed to hold a fresh enquiry into the matter of appointing a Kotwar.

(3.) FOR these reasons, clause (iv) of rule 2 of the Rules framed under section 258 read with section 230 of the Madhya Pradesh Land Revenue Code, 1959, governing the appointment, duties etc., of Kotwars, is declared to be invalid and the decision of the Board of Revenue dated 8th December 1961 is quashed. The Board shall now decide the matter in the light of this order. In the circumstances of the case, we leave the parties to bear their own costs. The outstanding amount of security deposit shall be refunded to the petitioner. Petition allowed.