@JUDGMENTTAG-ORDER
Keshav Kumar Trivedi, J.@mdashThe petitioner is aggrieved by the order dated 19/07/2010 passed by the State Minister, Panchayat and Rural Development, Bhopal by which while allowing the Revision of the respondent no. 7 the order passed by the Commissioner as also by the Collector both have been set aside and the order of appointment of the respondent no. 7 so issued on 21/07/2008 has been restored and the matter has been remitted back to the Commissioner for deciding the same on merits. The facts giving rise to filing of the Writ Petition are that action was initiated pursuance to the instructions of the State Government issued on 27/01/2006, for appointment of Panchayat Karmis in the Gram Panchayat where the appointment of Panchayat Karmis were not made. Such directions were issued by the State Government in exercise of power u/s 86(1) of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniam, 1993 (hereinafter referred to as ''Act''). In the very same instructions it was said that in case the Gram Panchayat failed to exercise their power of making appointment of Panchayat Karmi within a period of 30 days from the date of issuance of the notice, the Collector or his nominee is required to exercise the power of appointment of Panchayat Karmi, as per the provisions of Section 86(2) of the Act aforesaid. Since the Panchayat concerned failed to make appointment of Panchayat Karmi within the period prescribed, applications were invited by the Chief Executive Officer of concerned Janpad Panchayat and on receipt of such applications, a merit list was prepared by a committee under the chairmanship of Sub Divisional Officer of the sub division. The committee found that the petitioner has obtained 72% merit marks and stood at serial no. 1 of the select list. The respondent no. 7 was at serial no. 2 of the said select list. The list was published, objections were invited and thereafter order of appointment was required to be issued. However, without there being any justified reason, instead of giving appointment to the petitioner, the order of appointment was issued in respect of the respondent no. 7 by the Chief Executive Officer of the concerned Janpad Panchayat. Pursuance to the said order of appointment a notification was issued by the Collector notifying the respondent no. 7 as Secretary of the Gram Panchayat, in accordance to the provisions of Section 69(1) of the Act. Such an order was called in question by filing an appeal before the Commissioner. This appeal was decided on 12/01/2009 and the matter was remitted back to the Collector Panchayat, Rewa for passing the appropriate orders and the order of notification of the respondent no. 7 was set aside. Against such an order a Writ Petition was filed before this Court being W.P. No. 880/2009 by the respondent no. 7. The said Writ Petition was disposed of with liberty to the respondent no. 7 to raise the issue before the Collector. The Collector decided the appeal and passed an order on 25/08/2009, set aside the appointment of the respondent no. 7 and directed taking action in accordance to the order passed by the Commissioner, Rewa Division and pursuance to the memorandum issued by the Board of Secondary Education. Again such an order was called in question before this Court in W.P. No. 9266/2009. This Writ Petition was dismissed as withdrawn with liberty to the respondent no. 7 to file an appeal within a period of 15 days from the date of order, vide order dated 13/10/2009. The fact remains that against the appellate order passed by the Collector, only a Revision would lie as per the provisions of the Rule 5 of M.P.Panchayat (Appeal and Revision) Rules, 1995. However, such an appeal/Revision was filed by the respondent no. 7 which too was dismissed on 19/04/2010. The order of Revisional Authority was called in question before the State Minister and since the State Minister has allowed the said Revision, remitted back the matter to the Commissioner to decide the case on merits, restored the appointment of the respondent no. 7, this writ petition is required to be filed. This Court while entertaining the Writ Petition has granted an interim stay of directing to maintain statusquo with respect to the appointment of Panchayat Karmi and this is how the petitioner is continuing on the post.
2. It is submitted by learned counsel appearing for the petitioner that since the petitioner was more meritorious than the respondent no. 7 at any rate he could not have been denied the appointment on the post of Panchayat karmi. Since this particular aspect was not considered by the appointing authority, the Collector has rightly allowed the appeal and Commissioner has also affirmed the order passed by the Collector by dismissing the Revision. There was no question of filing a second Revision before the State Minister. It is contended that since selection is to be made strictly on the basis of merit list prepared on the assessment of the marks obtained in the qualifying examination, the non selection of the petitioner and appointment of a less meritorious candidate was perse illegal. It is contended that since such a wrong was committed by the Chief Executive Officer of Janpad Panchayat, the rightful order was passed by the Collector which was affirmed in Revision by the Commissioner and therefore there was no question of interference in the said order by the State Minister.
3. Per contra, it is contended by learned counsel appearing for the respondent no. 7 that the petitioner was not qualified to take part in the selection as he has not passed qualifying examination within the provisions of the regulations of the Board. It is contended that the petitioner has failed on two occasions as regular student in class-X examination conducted by the Board and as per the instructions of the Board, he could not have been permitted to take part in the said examination as a regular candidate on third occasion. That being so, the petitioner was ineligible and was not to be selected atall. Such an objection was raised when the select list was prepared and since objection was sustained the name of the petitioner was removed and the next candidate in merit order i.e the respondent no. 7 was appointed. This aspect was not examined by the Collector or by the Commissioner and therefore the Revision was required to be filed before the State Minister. Since the State Minister has rightly decided the Revision, the order passed by the State Minister is just and proper and need not be interfered by this Court.
4. Learned counsel appearing for the respondent no. 8 has pointed out that the petitioner could have taken part in the examination even on third occasion as per the instructions issued by the Board. The petitioner has rightly taken part in the selection as his examination has not yet been cancelled by the Board of Secondary Education nor the said examination is called in question by the respondent no. 7 by filing any petition or appeal etc. Since the result of the petitioner with respect to the examination is still intact, according to the merit order, the petitioner was rightly selected and this fact was pointed out to the Collector by sending the memo by the Board which has been properly appreciated by the Collector. This being so, the order passed by the State Minister is not correct and justified.
5. Learned Government Advocate appearing for the respondents no. 1 to 4 has pointed out that the select list was prepared by a committee. The select list was put on notice board and objections were invited. The fact that such list was placed on notice board was duly acknowledged by the respondent no. 7 by signing the said document. If there was any objection, the same should have been raised in appropriate manner. However, nothing was said in that respect. On the other hand, the order of appointment of the respondent no. 7 was straightway issued and this fact was rightly examined by the Collector and the order of appointment of the respondent no. 7 has rightly been set aside. It is contended that in view of the submission made by the official respondent, the order of the Collector is required to be affirmed.
6. Heard learned counsel for parties at length and examined the record.
7. Undisputedly the petitioner could have been permitted to take part in the examination conducted by the Board of Secondary Education as per the instructions issued by the Board. No regulations have been framed or have been brought to the notice of this Court restraining any candidate to take part on third occasion as a regular candidate in the Board examination. In the absence of such regulations if the instructions were issued on earlier occasion in the year 1997, the same were watered down by the circular dated 09/07/1998. The specific condition was prescribed that those candidates who have discontinued the education for any reason if wanted to take part in the examination they can take part in the said examination within a gap of three years but for the said purposes they were required to submit an affidavit explaining the gap. If candidates are permitted in the like manner to take part in the examination and if they have passed the examination, it cannot be said that such a result was illegal and unjustified. Apart from that, the result of the petitioner has not yet been set aside by any Court or by the Board. The same has never been called in question in appropriate manner before any authority of law, having competent jurisdiction to set aside such a result. In absence of said action, the petitioner cannot be denied the benefit of result of examination obtained by him. If the said result is taken into account, the petitioner is more meritorious than the respondent no. 7 as he has secured 72% marks and the respondent no. 7 has secured 65.16% merit marks in the qualifying examination. This being so, the Collector was right in holding that the petitioner alone was meritorious enough to be appointed on the post strictly in accordance to the instructions of the State Government that the selection is to be made strictly on merits obtained in the qualifying examination. The State Minister has utterly failed to examine this aspect and has unnecessarily turned down the well reasoned order passed by the Collector and Commissioner. Consequently the Writ Petition is allowed. The order dated 19/07/2010 passed by the State Minister, Government of M.P. Panchayat and Rural Development Department, Bhopal is hereby quashed. The petitioner be allowed to work as Panchayat Karmi and Secretary of the concerned Gram Panchayat. There shall be no order as to costs.
