--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION NO. 5447 / 2010 INDRAPAL S/O SHYAMLAL JANI Vs. STATE OF MP & OTHERS * * * * * O R D E R ( 14/3/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 4/8/09 passed by the Addl. Distt. Magistrate, Dewas as well as the order passed by the Commissioner (Revenue), Ujjain, rejecting the appeal preferred by the petitioner. The contention of the petitioner is that an advertisement was issued on 21/8/08 inviting applications for the post of Panchayat Karmi and the petitioner along with other candidates applied for the same. A resolution was passed by the Gram Panchayat resolving to appoint respondent No.7 as a Panchayat Karmi, and the matter was forwarded to the Jila Panchayat for its approval. The petitioner has stated before this court that he was having 67.5% marks in the qualifying examination --- 2 --- whereas the respondent No.7 – Pappu was having 45% marks. Petitioner has stated before this court that Gram Panchyat while passing the resolution has rejected his candidature on the ground that he is not a permanent resident of village Chandwana and the Gram Panchayat has resolved to appoint respondent No.7 though he was nowhere in the merit. Petitioner has further stated that Jila Panchayat while passing the order as provided u/S. 86(2) of the MP Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, has directed the Gram Panchayat to appoint the petitioner on the post of Panchayat Karmi vide order dt. 13/5/08 and thereafter an appointment order was issued on 16/5/08. The petitioner has further stated that the matter relating to his domicile was also enquired into by the Sub Divisional Officer (Revenue) and an exhaustive report was submitted on 5/8/08 holding that the petitioner is a permanent resident of Gram Panchayat, Chandwana. The petitioner has further stated that after conducting a fact finding enquiry, the Chief Executive Officer, based upon the report submitted by the Sub Divisional Officer, has issued directions on 27/8/08 to --- 3 --- permit the petitioner to continue as a Panchayat Karmi and being aggrieved by order dt. 27/8/08 issued by the Chief Executive Officer, Jila Panchayat, an appeal was preferred before the Collector and the Collector vide impugned order dt. 4/8/09 has allowed the appeal preferred by the respondent No.7 – Pappu and directed the Gram Panchayat to permit respondent No.7 to function as Panchayat Karmi. Learned counsel for the petitioner before this Court has argued that as per the provisions of the MP Panchayat (Appeal & Revision) Rules, 1985, an order passed by the Jila Panchayat is appealable before the Commissioner and no appeal was maintainable before the Collector. He has prayed for quashing of the order passed by the Collector as well as subsequent order passed by the Commissioner, Ujjain. Learned counsel for the petitioner has also drawn attention of this Court towards domicile certificates issued by the Revenue Authorities in respect of the petitioner and the same are also on record as (Annexures P/9 and P/10). He has vehemently argued before this Court that the aforesaid domicile certificates are still in existence and they have --- 4 --- never been cancelled at any point of time and the Sub Divisional Officer, has rightly arrived at a conclusion regarding his domicile. He has prayed for quashing of the impugned orders. A reply has been filed by respondent No.5 and the contention of the respondent No.5 that the petitioner is having a Pathology Lab in some other village and his name also finds place in the voter list of some other village Gorighat and therefore he cannot be treated as domicile of village Chandwana and the Collector was justified in passing the impugned order as contained in (Annexure P/2) dt. 4/8/09. He has also argued before this court that the candidature of the petitioner, though the petitioner was higher in merit, was rightly rejected, as he was not a domicile of the village in question and it was a mandatory condition in the advertisement that a person should belong to a particular village in respect of which the advertisement for appointment of Panchayat Karmi was issued. He has argued before this Court that the Collector and the Commissioner were justified in passing impugned orders. --- 5 --- He has prayed that this petition does not warrant any interference and the writ petition deserves to be dismissed. Respondent No.7 has adopted the reply filed by respondent No.5. Heard learned counsel for the parties at length and perused the record and the matter is being disposed of at the motion hearing stage itself with the consent of the parties. In the present case, the petitioner before this court is aggrieved by order dt. 4/8/09 passed by the Collector as well as the order dt. 30/4/2009 passed by the Commissioner. In the present case an advertisement was issued on 21/8/08 inviting applications for the post of Panchayat Karmi and the petitioner as well as other candidates submitted their candidature for appointment to the post of Panchayat Karmi. It is an admitted fact that the petitioner was higher in merit and has received 67.5% marks in the qualifying examination whereas respondent No.7 has received 45% marks only. It is also an admitted fact that two domicile certificates issued in favour of the petitioner which are also on record were filed along with the application submitted by the petitioner (Annexure P/9 and P/10). It is also an admitted fact that the aforesaid domicile certificates have not --- 6 --- been cancelled at any point of time and they are in existence as on date. It is also an admitted fact that an enquiry took place and report was submitted by the authority in the matter. In the present case, as the Gram Panchayat has initially resolved to appoint respondent No.7 who was having only 45% marks, the matter was forwarded to the Jila Panchayat for issuance of necessary directions and the Jila Panchayat has rightly directed issuance of appointment order in favour of the petitioner who was having 67.5% marks. The order issued by the Jila Panchayat which is on record as (Annexure P/8) dt. 27/8/08 was subjected to judicial scrutiny on an appeal preferred by the respondent No.7 before the Collector and the respondent Collector has set aside the order dt. 27/8/08 and has directed appointment of respondent No.7 as a Panchayat Karmi. The Rules relating to Appeal & Revision certainly provides for an Appeal and as per Rule 3 of the Appeal & Revision Rules, 1995, the order passed by the Jila Panchayat is appealable before the Commissioner and therefore no appeal was maintainable before the Commissioner in the peculiar facts and circumstances of the case and therefore the Collector has transgressed his jurisdiction by passing the impugned order dt. 4/8/09. Not only this, the petitioner was --- 7 --- holding a valid domicile certificate. The same has not been challenged before any authority till date and the domicile certificates enclosed as Annexure P/9 and P/10 are still in existence. Thus it is an admitted fact that the petitioner is domicile of village Chandwana and therefore this Court is of the considered opinion that the impugned orders dt. 4/8/09 as well as the subsequent order dt. 30/4/10 passed by the Commissioner deserves to be and are hereby set aside. This Court while issuing notices in the matter on 2/5/10 has stayed the impugned order dt. 4/8/09 and the petitioner is very much continuing as a Panchayat Karmi. Resultantly writ petition is allowed. The impugned orders are quashed. Respondents are directed to continue the petitioner as a Panchayat Karmi with all consequential benefits. No order as to costs. (S. C. SHARMA) J U D G E KR