Suraj Singh vs Khushilal
2023 Latest Caselaw 17519 MP

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                               ON THE 19 th OF OCTOBER, 2023
                                              WRIT PETITION No. 1161 of 2013

                           BETWEEN:-
                           SURAJ SINGH S/O SHRI BALMUKUND, AGED ABOUT 24
                           YEARS, VILL AMLA TAH SEHORE (MADHYA PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI AVINASH ZARGAR - ADVOCATE)

                           AND
                           1.    KHUSHILAL S/O SHRI MOOLCHAND, AGED
                                 ABOUT 45 YEARS, VILL AMLA TAH SEHORE
                                 (MADHYA PRADESH)

                           2.    THE STATE OF MADHYA PRADESH THROUGH
                                 COLLECTOR, SEHORE (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                           (BY SHRI T.S.LAMBA - ADVOCATE )
                           (BY SHRI S.K.KASHYAP - GOVERNMENT ADVOCATE)

                           Reserved on: 20.09.2023

                           Pronounced on: 19.10.2023

                           (This petition having been heard and reserved for orders, coming on for
                           pronouncement this day, the Court pronounced the following:


                                                              ORDER

T h is petition is filed under Article 227 of Constitution of India questioning the order dated 27/11/2012 passed in case no.1084 II/2012 by Board of Revenue giving seal of approval to the appointment of respondent no.1 on the post of Kotwar of village Amla Tahsil and District Sehore. Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 10/20/2023 12:58:28 PM

The challenge is basically made by the petitioner on the ground that the appointment of respondent no.1 was made on the post of Kotwar only on the basis of recommendation made by the gram sabha. He submits that recommendation of gram sabha is only a recommendation and that cannot be given weightage over and above of all other requirements and which fullfilled by the petitioner. He submits that while giving appointment to respondent no.1 on the post of Kotwar the appointing authority has not applied its mind. He further submits that from the impugned order it clearly reveals that respondent no.1 did not have any educational qualification whereas the petitioner having a certificate of 5th pass. He submits that if a comparative assessment is made preference

should be given to the petitioner and he should have been appointed on the post Kotwar in place of respondent no.1.

Shri Zargar submits that relevant rules which contained procedure for appointment of Kotwar are made under the power provided under Section 230 of M.P.Land Revenue Code, 1959 (hereinafter referred to as 'Code 1959'). He further submits that as per sub Rule 2 of Rule 4 of 'Code 1959' it is provided that in making appointment of Kotwar preference may be given to the near relative of ex-kotwar when other things being equal. He submits that respondent no.1 and present petitioner both are near relative of ex-kotwar and as per the educational qualification of the petitioner he should have been given preference ignoring the recommendation of gram sabha and appointment on the said post should have been made of the petitioner. He has placed reliance upon a judgment of High Court passed in Writ Petition 17562/2013 (Umesh Nagle Vs. The State of Madhya Pradesh and others) decided vide order dated 06/02/2023.

Signature Not Verified Shri Lamba appearing for respondent on the other hand has opposed the Signed by: SUSHMA KUSHWAHA Signing time: 10/20/2023 12:58:28 PM

submissions made by counsel for the petitioner and submitted that the petitioner's appointment has been made in accordance with the procedure prescribed under the Rules and Rule 4(1) of 'Code 1959' very categorically provides that after recommendation of gram sabha the candidature of eligible persons is considered and according to the same appointing authority found that the respondent no.1 is more eligible, therefore, his appointment was made on the post of Kotwar. He has also pointed out that there was no requisite qualification of Kotwar and as such if petitioner has certificate of 5th pass that does not make him more eligible than that of respondent no.1 to get appointment on the post of Kotwar. He submits that respondent no.1 is also relative of ex-kotwar. He is aged about 45 years and has been assisting the ex- kotwar in his work, therefore, gram sabha has passed resolution in his favour and appointing authority found him fit to be appointment, as such appointments order has been issued. He submits that in a gram sabha 43 members of gram sabha have voted in his favour whereas only two votes was given to the petitioner. According to him, the authorities before whom the appointment of respondent no.1 has been assailed has approved the appointment.

I have heard the submissions made by counsel for parties and perused the record.

Perusal of record clearly reveals that tough the recommendation was

made by gram sabha in favour of respondent no.1 but he was appointed on the post of Kotwar considering the fact that he was also a near relative of ex-kotwar and was assisting him in his work of kotwar, therefore, maximum members of gram sabha have given their preference to respondent no.1.

The authorities have considered the appointment of respondent no.1 and Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 10/20/2023 12:58:28 PM

there is no illegality in appointing respondent no.1. He has been appointed according to the procedure prescribed under M.P.Land Revenue Code.

Merely because petitioner has qualification of 5th pass does not mean that he should be given preference. It is also not a case in which the appointment of respondent no.1 was made considering the recommendation of gram sabha and treating the same to be binding upon the competent authority but respondent no.1 was appointed not only on the basis of recommendation but on the basis of fact that he was near relative of ex-kotwar and had been assisting him in his work of kotwar.

Accordingly, I do not find any illegality in the orders passed by the authorities approving the appointment of respondent no.1. Petition does not have any special circumstance and ground raised by the petitioner to interfere or to disturb the concurrent finding of authorities approving the appointment of respondent no.1.

The petition therefore being without any substance and devoid of merit is hereby dismissed.

(SANJAY DWIVEDI) JUDGE sushma

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 10/20/2023 12:58:28 PM