Chattisgarh High Court
Budhram Manikpuri vs Chaituram on 29 November, 2024
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
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2024:CGHC:47180
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 9174 of 2022
1 - Budhram Manikpuri S/o Late Farsuram Manikpurui Aged About 54 Years Caste -
Panka, R/o Village Jaitpuri, Tahsil Farasgaon, District : Kondagaon, Chhattisgarh
... Petitioner
versus
1 - Chaituram S/o Ramnath R/o Village Jaitpuri, Tahsil Farasgaon, District : Konda-
gaon, Chhattisgarh
2 - State Of Chhattisgarh Through - Collector Kondagaon
3 - The Sub Divisional Officer (R) Farasgaon, Tahsil Farasgaon
4 - The Tahsildar Farasgaon, Tahsil Farasgaon
... Respondents
(Cause title is taken from Case Information System) For Petitioner : Mr. M.P.S. Bhatia, Advocate For State : Mr. Rajeev Bharat, Govt. Advocate For Respondents No. 1 : Mr. Manoj Chauhan, Advocate Hon'ble Shri Parth Prateem Sahu, Judge ORDER ON BOARD 29/11/2024
1. Petitioner in this writ petition has challenged the order dated 17.07.2020 i.e. order of appointment of temporary Kotwar, the order dated 17.03.2021 by which application for review filed under Section 51 of Chhattisgarh Land Revenue Code, 1959 (hereinafter referred as "the Code of 1959") was dismissed and order dated 05.08.2022 passed by Sub-Divisional Officer (Revenue) dismissing appeal filed by petitioner challenging the order dated 17.07.2020.
Digitally signed SHAYNA by KADRI SHAYNA KADRI 2/5
2. Learned counsel for petitioner submits that earlier, petitioner was appointed as Kotwar vide order dated 24.01.2007 which was challenged by Savitri Bai (Mother of Respondent no. 1). The appeal filed by Savitri Bai was allowed and order passed by First Appellate Authority was affirmed by Board of Revenue in a revision filed by petitioner. The order of Board of Revenue was put to challenge by petitioner in W.P.(S.) No. 5565 of 2016 and in the said petition on 05.07.2016 order of status quo with regard to "posting as it exists today shall be maintained" was passed. During pendency of writ petition, Savitri Bai submitted application on 12.03.2020 before respondent No. 4 that due to her old age and ill health, she is unable to perform duties of Kotwar and therefore, her son i.e. respondent No. 1 be appointed as Kotwar. On the same date, application was allowed and respondent No. 1 was appointed as Kotwar. Appointment of respondent No. 1 is contrary to Rules, no advertisement was issued upon occurrence of vacancy after resignation of Savitri Bai, earlier Kotwar, calling applications from interested persons for their appointment on the post of Kotwar. As the proceeding for appointment is initiated in contravention of Rules of appointment of Kotwar without issuance of advertisement, appointment of respondent No. 1 is dehorse the known procedure and vitiated from inception.
3. Learned State counsel submits that appointment of respondent No. 1 is in accordance with law. Order of appointment of respondent No. 1 was put to challenge before Sub-Divisional Officer and appeal submitted by petitioner was dismissed. He further contended that petitioner is having other efficacious remedy under the Code of 1959 of preferring second appeal and revision which was not availed. He next contended that he has called for record of appointment of Kotwar and placed the same for perusal of this Court.
4. Learned counsel for respondent No. 1 vehemently opposes the submission made by learned counsel for petitioner and would submit that appointment of respondent No. 1 is in accordance with the Rules of appointment. He further 3/5 contended that this writ petition is not maintainable in view of the efficacious alternate remedy available to petitioner of second appeal under Section 44 (2) of the Code of 1959 and further revision under Section 50 of the Code of 1959.
5. I have heard learned counsel for the respective parties and also perused documents placed along with this writ petition as also records of proceedings of appointment of Kotwar placed for perusal by learned State counsel.
6. Perusal of the order Annexure-P/1, which is an order of appointment would show that order of appointment is of temporary appointment of Kotwar. Rules regarding Appointment, Punishment and Removal of Kotwars and Their Duties is framed under Section 230 of the Code of 1959. Rule 4 of the aforementioned Rules deals with the procedure to be adopted after occurrence of vacancy. Relevant portion of Rule 4 is extracted below for ready reference :
4. (1) 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 Panchayat in whose area the post of Kotwar is vacant, shall appoint on aligible person on the post of Kotwar, if the person proposed in the resolution does not fulfil the qualification prescribed in rule 2, the authorised Revenue Officer shall reject the resolution after recording the reasons in writing and intimate the Gram Panchayat and call for a fresh proposal :
Provided that immediately on occurrence of a vacancy, the appointing authority may temporarily appoint a suitable person to perform the duties of the office of Kotwar till the regular appointment under sub-
rule (1) is made.
7. From perusal of the proviso appended to Rule 4 (1) would show that immediately, on occurrence of vacancy, appointing authority may temporarily appoint a suitable person to perform duties of office of Kotwar till regular 4/5 appointment under Sub-Rule 1 is made. From content of proviso, it is appearing that as soon as vacancy occurs, appointing authority can appoint suitable person temporarily to perform duties of Kotwar for which there is no requirement of issuance of advertisement for filling of vacancy calling applications from any other interested person. However, criteria is that thereafter, appointing authority has to initiate proceedings for appointment of permanent Kotwar under Sub-Rule 1 of Rule 4.
8. In view of specific provision under Rule 4, submission made by learned counsel for petitioner that advertisement for appointment of temporary Kotwar has not been issued is not sustainable as there is no such requirement under Rules of Appointment of Kotwar.
9. So far as second submission of learned counsel for petitioner that during pendency of status quo proceedings for appointment of Kotwar is initiated, is concerned, order of status quo which was obtained by petitioner in earlier petition is of maintaining status quo with regard to posting as it exists today of Kotwar working.
10. Admittedly, on the said date, petitioner was not discharging duties of Kotwar and it is the respondent No. 1 in that petition was discharging duties of Kotwar and futher, Savitri Bai, respondent No. 1 in earlier petition, after about more than three and half years of passing of order of status quo has shown her inability to discharge duties of Kotwar and thereafter proceedings for appointment of temporary Kotwar was initiated.
11. In the aforementioned facts of the case, I do not find any infirmity or irregularity committed by authority in initiating proceeding for appointment of temporary Kotwar.
12. For the aforementioned reasons, I do not find any merit in the writ petition. Accordingly, this writ petition is dismissed.
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13. However, considering order Annexure P/1 which is order of appointment of temporary Kotwar under provisio to Rule 4 (1) which further prescribe for initiating proceedings for appointment of permanent Kotwar under Rule 4 (1), respondents are directed to initiate proceedings for appointment of permanent Kotwar as per Rule 4 (1) of Rules of appointment of Kotwar framed under Section 230 of the Code of 1959, in accordance with law and complete proceedings within an outer limit of six months from today.
14. Record placed for perusal is returned back to learned State counsel.
Sd/-
(Parth Prateem Sahu) JUDGE Shayna