S.K. Gangele, J.
Heard.
1. The petitioner has filed this petition against the resolution passed by the Gram Panchayat dated 27.09.2008 and also against the order of Collector dated 24.03.2009 (Annexure-P-8).
2. The Gram Panchayat invited applications for appointment to the post of Panchayat Karmi. The Panchayat had taken a decision to appoint the respondent No. 6 as Panchayat Karmi on the basis of majority of votes of Panchas. A representation was submitted before the Sub-Divisional Officer in regard to irregularities committed by the Gram Panchayat in the matter of appointment of Panchayat Karmi. The SDO vide order dated 25.04.2008, cancelled the resolution passed by the Gram Panchayat dated 19.08.2007 and directed the Panchayat to again examine the applications submitted by the candidates in accordance with the directions issued by the Department dated 13.08.2007.
3. Thereafter, the Panchayat had again considered the merits of the candidates and decided to appoint the respondent No. 6 as Panchayat Karmi. The present petitioner challenged the aforesaid decision of the Panchayat in revision before the Collector. The Collector vide impugned order dated 24.3.2009 (Annexure-P-8) dismissed the revision filed by the petitioner on the ground that the Gram Panchayat issued another advertisement after direction by the SDO and the petitioner did not apply to the post of Panchayat Karmi in accordance with second advertisement, hence his case was not considered by the Panchayat. It is further observed by the Collector that respondent no. 6 is more qualified than the petitioner and in pursuance to the Circular of the State Government, the Panchayat had an option to add some more qualification hence, the appointment of the respondent No. 6 is in accordance with law.
4. Learned counsel for the petitioner has contended that the petitioner is more meritorious than the respondent No. 6. He received 70% marks in High School examination, however the respondent No. 6 received 45% marks hence, he could not be appointed as Panchayat Karmi. He further submitted that there was no question for submitting application for appointment to the post of Panchayat Karmi in second time because the SDO issued a direction to the Panchayat to consider the applications of all the applicants, who had applied initially hence, the order passed by the Collector is contrary to law. In support of his contentions, learned counsel for the petitioner relied on the following judgments.
(i)
(ii)
5. Learned counsel appearing on behalf of the respondent No. 6 has contended that the revision filed by the petitioner before the Collector was not maintainable. He had to file an appeal. He further contended that the Panchayat had discretion to add some more qualification, the answering respondent is more qualified. The order passed by the Collector is in accordance with law.
6. The petitioner questioned the appointment of respondent No. 6 as Panchayat Karmi. Section 5 of the Madhya Pradesh Panchayats (Appeal and Revision) Rules 1995 (hereinafter in short the Rules 1995'') gives power of revision to the Collector against the order passed by the Panchayat. The aforesaid provision reads as under:-
"5. Revision.- (1) The State Government, the Commissioner, the Director of Panchayat, the Collector may on its''/his own motion or on the application by any party, at any time for the purpose of satisfying itself/himself as to the legality or propriety of any order passed by or as to the regularity of the proceedings of, the authority subordinate to it/him call for and examine the record of any case pending before, or disposed of by, such authority and may pass such order in reference thereto as it/ he may think fit."
7. In the present case, the petitioner challenged the propriety of the order in regard to appointment of Panchayat Karmi hence, it cannot be said that the Collector had no power to entertain the revision in view of the provision of Section 5 of the Rules 1995. Apart from this, the answering respondent appeared before the Collector and participated in the revision proceedings hence subsequently on the ground of acquiescence he cannot challenge the jurisdiction of the Collector.
8. In regard to merits of the case, the SDO issued specific direction vide order dated 25.4.2009 to the Panchayat to consider all the applications submitted by the applicants for appointment to the post of Panchayat Karmi. It is an admitted fact that initially the petitioner applied for appointment to the post of Panchayat Karmi hence, it was obligatory on the part of the Panchayat to consider the case of the petitioner also in the second time for appointment.
9. It is also a admitted fact that the petitioner received more marks i.e. 70% marks in High School examination in comparison to the respondent No. 6, who received only 45% marks as mentioned by the Collector in his order dated 4.3.2009. This Court in the matter of
"11. The second question would be with regard to determination of merit. The minimum educational qualification prescribed is Class 10th Pass under the 10+2 High School Examination Pattern. Admittedly, the petitioner is 10th Class pass and is more meritorious then respondent No. 6. Merely because respondent No. 6 is more qualified and is 12th Class pass that cannot be a ground for ignoring the merit of the petitioner, who is qualified for appointment and giving preference to respondent No. 6 only because he is 12th Class pass, the decision taken by the Gram Panchayat by referring to Clause 3.3 of the policy dated 12.9.1995 is nothing but an arbitrary decision. The provisions of Clause 3.3 contemplates that apart from the aforesaid criteria laid down, the Gram Panchayat can lay down further criteria in the advertisement. The provisions of Clause 3.3 does not mean that the Gram Panchayat can lay down such condition which is arbitrary in nature. The conditions to be laid down by the Gram Panchayat conformity with the reasons for which it is laid down. The condition now laid down for giving preference to respondent No. 6 is nothing but an arbitrary condition, as preference is given to him only because he has some extra qualification then one prescribed, but if the minimum qualification is taken into consideration the petitioner is more meritorious than respondent No. 6."
10. On the basis of principle of law laid down by this Court in the aforesaid judgment, in my opinion, the decision of the Panchayat that the respondent No. 6 is more meritorious than the petitioner, is illegal. The same principle has been followed by this Court in another judgment in the case of
11. Consequently, the petition of the petitioner is allowed. The impugned order dated 24.03.2009 (Annexure-P-8) and the resolution of the Panchayat and appointment of respondent No. 6 as Panchayat Karmi is hereby set aside because the petitioner is more meritorious hence, the respondent No. 5 is directed to issue order of appointment of the petitioner as Panchayat Karmi. The order be complied with within four weeks from the date of receipt of the copy of the order. No order as to the costs.
