-:- 1 -:- Writ Appeal No.610 of 2011. 14.11.2011 :- Shri A.K.Sethi, learned Senior Counsel with Shri P.R.Bhatnagar, learned counsel for the appellant. Shri Bhuwan Deshmukh, learned Govt. Advocate for the Respondents No.1 and 2/State, on advance copy. Ms. Seema Sharma, learned counsel for the Respondent No.3, on advance copy. Heard on the question of admission. O R D E R BY this intra Court appeal under Section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, the appellant – writ petitioner has challenged the order dated 13.10.2011 passed by the learned Single Judge of this Court in Writ Petition No.7875 of 2009 (S). [2] Feeling aggrieved by the appointment as Panchayat Karmi and conferral of Secretarial power on the writ petitioner, the fifth Respondent filed an appeal before the Additional Commissioner, Indore Division, Indore. The Additional Commissioner vide order dated 27.08.2009 passed in Appeal No.396/2007-08 allowed the appeal, set-aside the appointment of -:- 2 -:- the writ petitioner, and remanded the matter to the Gram Panchayat, Bakawa for re-consideration of all the applications received for appointment on the post of the Panchayat Karmi as per the procedure. [3] The aforesaid order was assailed by the appellant – writ petitioner before the writ Court. It was the case of the appellant that the Additional Commissioner did not consider the fact that the appeal filed by the fifth Respondent against the order of Collector was barred by limitation. According to him without considering the question of limitation, the appeal was decided by the Additional Commissioner. It was also the case of the writ petitioner that there was no illegality in his appointment made by Gram Panchayat as the same was made after following due procedure. [4] The learned Single Judge after considering the submissions made by the parties and after going through the order passed by the Additional Commissioner dismissed the writ petition by observing thus :- “In the present case, it is not in dispute that an advertisement was issued inviting applications for appointment to the post of Panchayat Karmi. The -:- 3 -:- order of Additional Commissioner reveals that the Additional Commissioner has perused the original records produced by the Gram Panchayat and in paragraph 4 of the impugned order he has categorically stated that 20 applications were received by the Gram Panchayat and 20 applications are on record. Once a finding of fact has been arrived at by the Additional Commissioner that 20m applications were received by the Gram Panchayat, this Court is of the considered opinion that the Additional Commissioner was justified in remitting the matter back to the Gram Panchayat to consider all 20 applications received for the post of Panchayat Karmi. In the present case merely because an appeal was not preferred within 30 days, it does not mean that the illegal act of the Gram Panchayat cannot be looked into. This is the case where the Gram Panchayat in order to deprive 18 other meritorious candidates with an oblique and ulterior motive has recommended a person who was having only 30% marks. Keeping in view the totality of circumstances of the case, this Court is of the considered opinion that the Commissioner was justified in quashing the appointment order dated 31.8.2007 as well as the order conferring the secretarial power dated 28.4.2008. This Court is of the considered opinion that the order passed by the Additional Commissioner does not warrant any interference and the Gram Panchayat is directed to pass a fresh resolution by taking into account all 20 applications received in the matter. The aforesaid exercise of passing a fresh resolution be completed as early as possible preferably within 30 days from the date of -:- 4 -:- receipt of certified copy of this order. With the aforesaid, the writ petition is disposed of.” [5] The learned Senior Counsel argued that without deciding the question of limitation, the Additional Commissioner could not have decided the matter on merits. He submits that the writ Court has not considered this aspect of the matter and has also not summoned the record for finding out as to whether his appointment made by the Gram Panchayat was on the basis of a properly passed resolution. [6] We find no merit in the submissions made by the learned Senior Counsel for the appellant – writ petitioner. [7] In the Memo of Appeal filed by the fifth Respondent, the fifth Respondent had stated the reasons for delay with a prayer to condone the same. On being noticed, the appellant – writ petitioner though initially appeared but thereafter did not appear before the Additional Commissioner and, therefore, the appeal was decided ex-parte on merits treating it to be within limitation. In the circumstances the appellant having failed to contest the matter before the Additional Commissioner could not have raised this ground before the writ Court. -:- 5 -:- [8] The writ Court rightly refused to exercise discretionary jurisdiction in favour of the appellant keeping in view the finding of fact recorded by the Additional Commissioner. We find that the Additional Commissioner had summoned the record and after perusal of the record reached to the conclusion that total 20 applications were received for the said post. A seniority list as per the marks received were also prepared but ignoring the applications and the merit list, the writ petitioner who could secure only 38% marks was selected by the Gram Panchayat and was appointed. This finding of fact recorded by the Additional Commissioner was rightly not interfered into by the writ Court. [9] We find no ground to interfere in this intra Court appeal. Accordingly the appeal fails and is hereby dismissed. [ Shantanu Kemkar ] [ Prakash Shrivastava ] JUDGE JUDGE (AKS)