..'^^-^- W. !£ %?;"')?''?? !.yBt IN THE HIGH COURT OF JUDICATURECJIHATTISGARH AT BILASPUR W.P.No.^2>;£ / 2005 Petitioner ?^/ ..••* ff^. ^.^Q^ ,cb.}-c^"> ^^•^\^'^' -<•'' ^ ^l... ^ssp !;>•' esppndents 1) 2) Am Singh, S/o Shri Punit Ram Marar (Patel)Aged about 27 years, R/o Village Sanod Tahsil Gurur, District Durg (C.G.) Vereus State of Chhattisgarh - Through the Oollector, Durg, District Durg (C.G.) Phooleshwari Mahar, W/o Shri Ghanshyam Mahar, Aged about 45 years, R/o Village Sanod, Tahsil Gurur. WRIT PETITION UNDER ARTICLE 226/227 OFJME CONSTITUTION OF INDIA 1 '^ ._u._ ._Pfirl-irii il-aro n-F nn+;+;nnn».^ \- "V ~~'^.>, '"^ g •»i .^ -^ HIGH COURT OF CHHATTISGARIL BILASPUR S.B.: HON'BLE MR. JUSTICE SUNIL KUMAR SINHA W.P. No. 2916 of 2005 Am Singh Vs. State of Chhattisgarh & another ORDER Post for Order: 04/12/2010 Sd/- Sunil Kumar Sinha Judge %^^s// i<f! HIGH COURT OF CHHATTISGARH. BILASPUR S.B.: HON'BLB MR. JUSTICE SUNIL KUMAR SINHA PETITIONER RESPONDENTS W.P. No. 2916 of 2005 Am Singh, S/o Shri Punit Ram Marar (Patel), Aged abouf 27 years, R/o ViUage Sanodh Tahsil Gurur, District Durg tC.G.) yersus ^ 1 State of Chhattisgarh - Through the Collector, Durg, Distriet Durg (C.G.) 2 Phooleshwari Mahar, W/o Shri Ghansyam Mahar, Aged about 45 years, R/o Village Sanodh, Tsihsil Gurur WRIT PETITION DNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA Anuearance: Mr. Anand Dadariya, Advocate for.the petitioner. Mr. S.K. Mishra, Panel Lawyer for the State/respondent No.l Ms. Sudha Agrawal, Advocate for respondent No.2. ORDER (04.12.2010) SUNIL KUMAR SINHA. J. (1) Petitioner- Am Singh has challenged fhe validity of order dated 29* of March, 2005 passed in.Revenue Appeal No. 680/A-56/2003- 2004 by the Board of Revenue, CG, Bilaspur (Annexure-P/4). By the impugned order, the appeal filed by the petitioner against the order dated 3TT12.2001 passed by the Sub-Divisional Officer, Balod, District Durg in Case No. 83/A-56/ 1999-2000 was dismissed by the Board of Revenue. <- W.P.NO. 2916 of 2005 (2) The facts, briefly stated, are as under:- Ghanshyam Mahar, husband of respondent No.2 herein, was Kotwar of Village Sanodh, Tehsil Gurur, Dista-ict Durg (CG). In the year 1996 a show-cause notice was issued to him for various irregularities and misconduct. He was suspended and ultimately, he was removed from the post of Kotwar by the Naib Tehsildar, Gurur. He challenged his order before the Sub- Divisional Officer, the Additional Commissioner and Board of Revenue, M.P., Gwariior. His order of removal was throughout upheld. Thereafter he filed W.P. No. 3472/2000 before the High Court but the said writ petition was also dismissed vide order dated 7.7.2005. On account of removal of Ex-Kotwar the vacancy of Kotwar occurred and the concerned Tehsildar started the process of appointinent of new Kotwar. He called applications for appointment by issuing Isthaar on 27.5.96. This was done vide Revenue Case No. 12A-56 year 1996-1997. On account ofinterim stay granted in the matter of Ghanshyam Mahar, the proceedings of the said revenue case were stayed. However, when the interim stay became ineffective, the concerned Tehsildar, instead of condnuing with the earlier case, issued a fresh Isthaar and called the fresh applications. A fresh case bearing No. 1A-56 year 1998- 1999 was registered. The second Jsthaarwas issed on 8.2.99. The proceedings of this case was also stayed on account of soine order passed in the proceeding filed by Ghanshyam Mahar against his removal. When the second stay also stands vacated, the Tehsildar issued 3rd Isthaar on 1.7.99. In the first two Isthaars, issued by the concerned Tehsildar, petidoner-Am Singh was not a candidate. However, he became a candidate after issuance of 3I'd Istha.ar. The Tehsildar examined rival claims of the candidates, and by an order dated 30.6.2000 passed in Revenue Case No. 1A- 56 year 1998-1999 appointed the petitioner as Kotwar of Village Sanodh, Tehsil Gurur, District Durg. This order was challenged by respondent No.2 before the Sub-Divisional Officer by filing Revenue Appeal No. 83A/56 year 1999-2000. The Sub-Divisional Officer found that there was procedural irregularity in appointment of the petitioner and the petitioner was not a candidate at the initial stage, because he had not attained the age W.P.NO. 2916 of 2005 of 21 years at that time, therefore, the order passed by the Tehsildar was set-aside. The petitioner challenged the said order before the Board of Revenue but the Board also took similar view and upheld the order passed by the Sub-Divisional Officer. It is against this order, passed by the Board of Revenue, the petitioner has filed this writ petition. (3) Mr. Anand Dadariya, learned counsel appearing on behalf of the petitioner, argued that the orders passed by the Sub-Divisional Officer and Board of Revenue are not in accordance with the Rules, therefore, the 2 orders be set-aside and the order passed by the Tehsildar be upheld. He submitted that the Tehsildar was right in procedure in issuance of various Isthaars, therefore, the findings recorded by the above 2 authorides are erroneous. He further argued that the petitioner was most suitable candidate among the others including respondent No.2. Therefore, he was rightly appointed by Tehsildar. He also argued that since the husband of respondent No.2 was removed on account of misconduct, therefore, respondent No.2 was not entitled to be appointed as Kotwar in view of the provisions of Rule 4 (2) frained for the appointment of Kotwars. (4) On the other hand, Mr. S.K. Mishra and Ms. Sudha Agrawal, leamed counsel appearing on behalf of respective respondents, opposed these arguments and supported the orders passed by the Sub- Divisional Officer and Board of Revenue. (5) I have heard the learned counsel for the parties at length and have also perused the records of the writ petition. (6) Rule 3 of the Rules framed for appointment, punishment and removal of Kotwars states that the appointment of Kotwar shall rest ^-^-l^"; /-' W.P.No. 2916 of 2005 with the Collector, Sub-Divisional Officer, Assistant Collector of the first grade, Assistant Collector of the Second grade if specially empowered by the Collector in this behalf. Tahsildar or Naib-Tahsildar who is empowered to exercise the powers of a Tahsildar under Sub-section (2) of Section 24 of the M.P. (C.G.) Land Revenue Code, 1959 are also authorized to make appointment. The Proviso to this Rule further provides that the Collector may specially empower a Naib-Tahsildar who has not been invested with the powers of a Tahsildar under the said Code, to make appointments under this rule. Rule 4 provides that on the occurrence of a vacancy in the post of a Kotwar, the Revenue Officer, who is empowered to make appointment, after receiving a resolution duly passed by the Gram Sabha in whose area the post of Kotwar is vacant, shall appoint an eligible person on the post of Kotwar, if the person proposed in the resolution does not fulfill the qualification prescribed in rule 2, the authorized Revenue Officer shall reject the resolution after recording the reasons in writing and intimate the Gram Sabha and call for a fresh proposal. Proviso has also been added to Rule 4 for temporary appointaiient till the regular appointment is made under sub-rule (1) of Rule 4. Sub-rule (2) of Rule 4 also provides that in making appointment of a Kotwar under Sub-rule (1) of Rule 4 preference may be given to the near relative of the Ex-Kotwar if other things are equal. There is a note appended to sub-rule (2) which clearly provides that if the vacancy is caused by suspension or dismissal of previous incumbent for bad character, misconduct or disobedience and the effect of the dismissal would be lost if the member of his family is appointed to succeed him, relatives of fhe previous incumbent may not be appointed. / W.P.No. 2916 of 2005 (7) It is under the said Rules, the appointing authority has to complete the exercise of appointment, which, in the present case, has not been done. The Sub-Divisional Officer as also Board of Revenue has found that Tehsildar, Gurur issued three Isthaars for appointment to the said post. We do not find such provisions in the existing Rules. The existing Rule says that the proposal should be moved through concerned Gram Sabha. This does not appear to have been done in this matter. Mr. Dadariya has argued that Gram Sabha had recommended for appointraent of the petitioner. He referred to Annexure-P/1. Annexure-P/1 is not a proposal of Gram Sabha. It bears the signatures of various persons without any authentication. The language of Annexure-P/1 also does not show that there was any resolution of Gram Sabha. It appears that some villagers have sent the letter to the concerned Tehsildar praying for appointment of the petitioner. This does not fulfill the requirement of Rule. There are other procedural mistakes also in the appointment of the petitioner by Tehsildar which the Sub-Divisional Officer and the Board of Revenue have highlighted in their respective orders. (8) On due consideration of the entire facts and circumstances of the case, I do not fmd any infirmity in the orders passed by the above two authorities, whereby, the appointraent of the petitioner to the post of Kotwar has been set-aside by the said authorities. (9) The writ petition, therefore, is liable to be dismissed and is hereby dismissed. Consequently, interim order passed in favour of the petitioner on 13.7.2005, automatically stands vacated. Though the appointment of the petitioner has been set-aside by the said authorities, but no directions have been given relating to the fresh appointment. It > W.P. No. 2916 o0005 is therefore directed that the copy of this order shall be produced before the concerned Collector, who in turn shall authorize the competent officer to undertake fresh exercise for appointment to the post of Kotwar ofvillage Sanodh, Tehsil Gurur, District Durg by calling fresh proposals of the suitable candidates from the concerned Gram Sabha in accordance with Rule 4 (1) of the above Rules and shall finalize the <? appointment strictly in accordance with the provisions of the said Rules. The petitioner and r?spondent No.2; if so desired rnay also participate in the process of fresh appointa3ient. Sunil Kumar Sinha Judge vatti