Madhya Pradesh High Court
Siddhant Ingle vs Vasanta on 20 December, 2023
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 20 th OF DECEMBER, 2023
WRIT PETITION No. 30784 of 2023
BETWEEN:-
SIDDHANT INGLE S/O BASANT RAO, AGED ABOUT 29
YEARS, OCCUPATION: SELF EMPLOYED R/O HOUSE NO.
185 WARD NO. 13 GRAM BAROLI TEHSIL AND
DISTRICT BURHANPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AVINASH ZARGAR - ADVOCATE)
AND
1. VASANTA S/O RAGHUNATH INGLE, AGED ABOUT
63 YEARS, OCCUPATION: SELF EMPLOYED R/O
PERMANENT ADDRESS HOUSE NO. 185 WARD NO.
13 GRAM BAROLI POST ICHHAPUR TEHSIL AND
DISTRICT BURHANPUR (MADHYA PRADESH)
2. RAJENDRA S/O VAMAN INGLE, AGED ABOUT 44
YE A R S , OCCUPATION: SERVICE R/O GRAM
BAROLI POST ICCHAPUR TEHSIL AND DISTRICT
BURHANPUR (MADHYA PRADESH)
.....RESPONDENTS
This petition coming on for admission this day, th e court passed the
following:
ORDER
Heard learned counsel for the petitioner on the question of admission.
2. Learned counsel for the petitioner submits that one Vaman Ingle was
posted as Kotwar of village Baroli and due to his death the process was started
to appoint the new Kotwar and the applications were submitted by the petitioner
as well as respondents for appointment as Kotwar. The respondent No.2 was
appointed as Kotwar vide order dated 16.12.2015 being son of the erstwhile
Kotwar. The said order was challenged by the petitioner by preferring an appeal
and the appeal was allowed by the order dated 26.7.2017. Thereafter, the matter
was remanded and after considering the applications and material on record by
order dated 17.7.2018, Naib Tehsildar, Tehsil Shahpur passed the order to
appoint the respondent No.2 as Kotwar of village Baroli. The said order was
challenged by the present petitioner in appeal before the S.D.O. (Revenue)
Burhanpur. The S.D.O. by order dated 5.12.2019, dismissed the appeal
preferred by the petitioner. According to the petitioner, during this period, the
respondent No.2 was convicted by the Sessions Judge Burhanpur by judgment
dated 11.12.2018 passed in Criminal Appeal No.49/2018 whereby the victim has
challenged the judgment of acquittal passed by the JMFC Burhanpur in Criminal
Case No.510/2016. The respondent No.2 was convicted under Section 323/34
of IPC. However, he was released on probation. Thereafter, the petitioner filed
appeal before the Additional Commissioner, Indore and the same was
dismissed by order dated 24.8.2022. Hence, the present petition has been filed.
3. The main contention of the petitioner is that the respondent No.2 has been
convicted by the Sessions Court in Criminal Appeal under Section 323/34 of
IPC, therefore, he cannot be appointed on the post of Kotwar. However, fairly
accepted that the conviction under Section 323/34 of IPC will not amount
conviction in offence of moral turpitude. It is also not the case of the petitioner
that the respondent No.2 has suppressed the fact of pendency of appeal. He
relied on the judgment passed by the coordinate Bench in W.P. No.14219/2018
(Supa vs. Deepa) dated 2.11.2018 by which it was decided by the coordinate
Bench that once the criminal antecedents against the petitioner has been taken
into consideration by the Additional Commissioner, Indore as well as by the
Board of Revenue, no interference is warranted as the appointing authority
ought to have form the opinion on the basis of good character and antecedent.
He further relied on the order passed by the coordinate Bench in W.P.
No.3676/2018 (Rajpal Singh Nahar vs. State of M.P. and others) dated
13.1.2020 whereby it was held that it is very difficult to state that every assault is
not an offence involving moral turpitude.
4. The aforesaid orders passed by the coordinate Bench are not helpful to the
petitioner as in the case of Rajpal Singh Nahar (supra), the petitioners therein
was convicted under Sections 148, 149, 323, 325 of IPC. However, the same
was not found sufficient by the Court to the termination of services on the basis
of conviction in criminal case. It was further held in that order that the
conviction under Sections 148, 149, 323, 325 of IPC does not fall within the
definition of moral turpitude and in view of judgment of Apex Court in the
matter of State of M.P. and others vs. Hazarilal, reported in 2008 (3) SCC 273,
the services of the employee was continued and not terminated on the said
ground. In the present case, the conviction is only under Section 323/34 of IPC
and the benefit of Probation of Offenders Act has been extended to the
respondent No.2. So far as the order passed in the case of Supa (supra), the
coordinate Bench has held that the appointing authority has to form opinion on
the basis of good character and antecedent of the candidate. In the present
matter, the appointing authority after considering the fact of conviction under
Section 323/34 of IPC, continued the appointment of the respondent No.2 and
therefore, the said order is also not helpful to the petitioner.
5. As per Section 230 of M.P.L.R.Code, for the purpose of appointment of
Kotwar, the preference is required to be given to the nearest family members of
the deceased-Kotwar. Respondent No.2 is the son of erstwhile Kotwar
whereas the petitioner is only relative of the deceased-Kotwar. Apart from that,
respondent No.2 is resident of same village whereas the petitioner is resident of
village Anturli, Post Anturli Taluka Muttainaar, District Jalgaon (Maharastra).
6. After considering all the facts and circumstances of the case, the
appointing authority has exercised the discretion to appoint the respondent
No.2 and the said order has maintained by the appellate authority. Therefore, I
do not find any reasons to interfere in the orders passed by the appointing
authority and appellate authority.
7. Consequently, the present petition fails and the admission is declined.
Petition is hereby dismissed.
(VINAY SARAF)
JUDGE
irf.
