NIRGHINDAS NANDU Vs. GUHADAS CHAMRUDAS

JUDGEMENT

(1.) THIS is an application for revision against the order of the Commissioner, Bilaspur Division, dated 12-6-64 under which he had summarily dismissed a second appeal filed before him by the applicant against the order of the Sub-Divisional Officer setting aside the Tahsil order dismissing the non-applicant Guhadas from the post of Kotwar and appointing the applicant as Kotwar in his place. The Sub-Divisional Officer had found that the Tahsil order was vitiated by serious irregularities and even the principles of natural justice had, been given the go-by. So he had remanded the case to the Tahsil Court for deciding it after proper enquiry. The Commissioner found that there was nothing contrary to the law in the order of the Sub-Divisional Officer and there was no substantial error or defect in the procedure either which would warrant any interference by him. He, therefore, dismissed the revision application summarily. The case of the applicant is that there was no irregularity in the procedure followed by the Tahsildar and therefore there was no justification for the Sub-Divisional Officer to remand the case for fresh enquiry. The learned counsel also challenged the legality of the Sub-Divisional Officer's order on the ground that the appeal before him was time-barred by several months and he has not said even so much as a word about condoning the delay.

(2.) I have gone through the records of the case and have considered the points of view put forward by the contesting parties as well as by the learned Government Advocate on behalf of the State. I think that there have been various irregularities of a rather serious nature in the manner in which the case was dealt with by the Tahsil Court. Thus even if the Sub-Divisional Officer's order is held to be not free from defects the substance of the order is quite appropriate and has to be maintained. Irregularities were committed by the Tahsildar both in dismissing the non-applicant and in appointing the applicant. There are enough materials on record to create the impression that the non-applicant had been guilty of wilful breach of the rule regarding residence in the village and as such probably he deserved to be dismissed, but in fairness and in accordance with the principles of natural justice at least a notice should have been issued to him and he should have been heard before the order of dismissal was passed. This is the irregularity in regard to the order of dismissal. About the appointment of the applicant, the most obvious irregularity is that he was appointed, apparently permanently, under the same order under which the non- applicant was dismissed and consequently the vacancy had occurred. It would seem that the applicant had applied for the post even before the non-applicant was dismissed and the vacancy was created, and a proclamation was issued inviting objections to his appointment. This, it goes without saying is not the procedure that has to be followed in appointing a Kotwar. Rule 4 (1) of the rules framed under section 230 of the Code lays down that on the occurrence of a vacancy for the post of a Kotwar, applications shall be invited by means of a proclamation in the village and after considering the claims of the rival applicants, a suitable person should be selected for appointment and the appointing officer shall briefly record his reasons for his selection. In this case this procedure was obviously not followed. The proviso below this rule of course lays down that the appointing authority may temporarily appoint a suitable person to perform the duties of the office of Kotwar pending regular appointment as required by sub-rule (1) to fill up the vacancy permanently. But the order under which the appointment of the applicant was made does not show that he was appointed temporarily under this proviso. In view of the above the Tahsil order dated 19-11-62 deserves to be set aside.