AYODHYA PRASAD Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE petitioner, a candidate for appointment as a Kotwar of village sadumar, Tahsil Gadarwara, District Narsinghpur, feels aggrieved by orders annexures P-2, P-4 and P-5 and seeks a writ of certiorari for quashing the same by filing this petition under Articles 226 and 227 of the Constitution of India.

(2.) IT appears that the Kotwar of the village having been removed, the post had fallen vacant for which applications were invited by respondent Tahsildar in accordance with the provisions contained in section 230 of the M. P. Land Revenue code (hereinafter referred to as the Code) and Rules made thereunder. The petitioner and respondent No. 5 applied for the post. The Tahsildar considered these applications and was of the opinion that the petitioner was literate having studied upto x Standard and is otherwise younger in age and should be preferred against respondent No. 5. In an appeal filed against the aforesaid order, the respondent Surt divisional Officer differed with the Tahsildar and held that the general reputation of the petitioner made him unsuitable for appointment. According to the respondent sub-Divisional Officer the advantages of education are not sufficient to outweigh the disadvantages of general reputation. The respondent S. D. O. , therefore, selected respondent No. 5 for appointment. In a further appeal before the Additional commissioner, the Additional Commissioner agreed with the S. D. O. and dismissed the petitioner's appeal. A challenge to the order was made by filing a revision before the respondent Board of Revenue but the said revision remains dismissed by the impugned order.

(3.) THE submission of the learned counsel for the petitioner is that Tahsildar while appointing the Kotwar under section 230 of the Code discharges a judicial function and hence is bound to act only on the evidence adduced before him. The opinion of Gram Panchayat or other persons would therefore be inadmissible in evidence and introduce infirmity in the impugned orders. An appointment made under a statutory provision or rule is not the result of judicial process nor the authority discharging this function acts in a judicial capacity. The true judicial functions are those which are performed by Courts of law to which the Evidence Act applies and have to be distinguished from quasi-judicial or administrative functions. In one sense, all functions in a democratic Republic like ours where every authority derives its autho-rity and jurisdiction from the Constitution, have to be performed in a just and fair manner and yet the aforesaid distinction remains real. The Evidence act does not govern the procedure before quasi-judicial or Administrative Authorities. who are obliged to follow only the principles of natural justice. The aforesaid distinction is maintained even while classifying the acts of a judicial authority like the court of law. The Chief Justice of a High Court under the scheme of our Constitution functions in judicial capacity while exercising powers and jurisdiction under Art. 226 of the Constitution. He, however, does not function in judicial capacity while exercising powers under Art. 229 of the Constitution, while appointing officers and servants of the High Court. He is, however, obliged to act in a just and fair manner in both cases. The distinction becomes marked by application of law of evidence to courts discharging judicial functions. It is by now settled that the Evidence Act does not apply to proceedings before quasi-judicial or Administrative Authorities, even though they may be judicial in character. (Union of India vs. T. R. Venna, A. I. R. 1957 s. C. 882 ). The submission of the learned counsel for the petitioner, however, is that the Tahsildar being a revenue officer appointed under the Code is "court" and hence is bound by the provisions of the Evidence Act. The submission is rather broadly stat and cannot be accepted. A Tahsildar is, no doubt, a Revenue Officer and even acts as a Court, but not always. Section 31 of the Code clarifies the distinction and confers the status of a Court upon a Revenue Officer only when such officer is enquiring into or deciding any question arising for determination between the State Government and any person or between parties to any proceedings before him. The Revenue Officer would not be a Court while discharging any other function. Revenue proceedings before the Tahsildar may therefore be recognized as judicial proceedings, but his action under section 230 of the Code is covered by this term. This section only gives him the authority to appoint a Kotwar in accordance with provision of the Code and the Rules and is not akin to his powers to decide a Us in a revenue proceedings. In shamsher Singh vs. State of Punjab A. I. R. 1974 S. C. 2195 the Constitution Bench of the Supreme Court examined the powers of the Governor to appoint a judicial officer under Article 234 of the Constitution and held that it is "an executive function of the governor exercised in accordance with the rules in that behalf under the constitution. " Clearly therefore the Tahsildar while making selection for appointment as a "kotwar" discharges an execution function and is not bound by the law of Evidence. In spite of it his obligation is to act in a just and fair manner and in accordance with the Code and the Rules made thereunder. Nothing has been brought to the notice of this Court to show that he is required to obtain information or material for making selection by following the provision of the Act. Absence of any such provision sufficiently justifies the conclusion that the concept is alien to the process of selection. Clearly, therefore, an appointment in terms of a statute or a rule is no doubt required to be made in accordance with the statute and the rules and the judicial procedure is not required to be followed for making the selection. In spite of it, it is true that the claim of the applicant cannot be rejected on extraneous consideration. This is because of the basic requirement of our law as contained in Articles 14 and 16 of the Constitution. What is extraneons in a particular case will depend on the facts and circumstances of the case. In the instant case the opinion of the Gram Panchayat was obtained to hold that the petitioner did not enjoy a good reputation. The Gram panchayat has passed resolutions against the petitioner. The resoulution of the Gram panchyat was not obtained by the Tahsildar by following the provisions of the evidence Act and that is the reason why it is terned as "extraneous" by the petitioner. The submission is, again, too broadly stated and hence cannot be accepted. It cannot be accepted that even the relevant material would become 'extraneous' only because it was not produced before the Authority in accordance with the Evidence Act. Any thing which is not obtained through the judicial process is not irrelevant or extraneous. cannot be seriously disputed that while selecting a suitable candidate for appointment not only his capacity to work but also his general reputation would be a relevant factor. If general reputation of a candidate is relevant and about which this court has no doubt, the authority would be entitled to gather information from its own sources to arrive at its own conclusion. This information is not required to be gathered by summoning the person giving the information to give evidence and subjecting him to cross-examination. This is so because the purpose is not to punish the person or stigmatise him in any manner. The purpose is only to judge his suitability for appointment. This is what exactly the authorities have done. A village Panchyat is the authority responsible for conducting the affairs of the village and therefore its opinion about the general reputation of the candidate would be very relevant. The authoritis can therefore not be accused of relying upon irrelevant or extraneous considerations. The grievance of the petitioner must therefore be held baseless.