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Madhya Pradesh High Court

Umesh Nagle vs The State Of Madhya Pradesh on 6 February, 2023

Author: Sheel Nagu

Bench: Sheel Nagu

                                                                       1
                                        IN    THE      HIGH COURT OF MADHYA PRADESH
                                                            AT JABALPUR
                                                                  BEFORE
                                                      HON'BLE SHRI JUSTICE SHEEL NAGU
                                                          ON THE 6 th OF FEBRUARY, 2023
                                                         WRIT PETITION No. 17562 of 2013

                                       BETWEEN:-
                                       UMESH NAGLE S/O SHRI BABURAO, AGED ABOUT 35
                                       YEARS, R/O CHICHKHEDA, TAHSIL MULTAI, DISTT.
                                       BETUL (MADHYA PRADESH)

                                                                                                  .....PETITIONER
                                       (BY SHRI RAJESH DUBEY - ADVOCATE )

                                       AND
                                       1.    THE STATE OF MADHYA PRADESH THR THE
                                             PRINCIPAL     SECRETARY,    REVENUE
                                             DEPARTMENT, VALLABH BHAWAN, BHOPAL
                                             (MADHYA PRADESH)

                                       2.    THE         COMMISSIONER NARMADAPURAM
                                             DIVISION, HOSHANGABAD (MADHYA PRADESH)

                                       3.    SUB DIVISIONAL OFFICER, MULTAI, DISTRICT
                                             BETUL (MADHYA PRADESH)

                                       4.    TEHS ILD AR PRABHATPATTAN,       DISTT.   BETUL
                                             (MADHYA PRADESH)

                                       5.    SMT. USHA NAGLE W/O LATE SHRI PRASRAM
                                             NAGLE, WORKING AS AAGANWADI DIRAMOSI
                                             CHICHKHEDA, R/O VILL. CHICHKHEDA, TEH.
                                             MULATI DISTRICT BETUL (MADHYA PRADESH)

                                                                                                .....RESPONDENTS
                                       (BY SHRI LOKESH JAIN - PANEL LAWYER FOR THE RESPONDENTS NO.1
                                       TO 4 AND SHRI VIVEK AGRAWAL - ADVOCATE FOR THE RESPONDENT
                                       NO.5 )

Signature Not Verified
  SAN                                        T h is petition coming on for orders this day, t h e cou rt passed the
Digitally signed by MONIKA CHOURASIA
Date: 2023.02.10 11:27:01 IST
                                       following:
                                                                        ORDER

2 This writ petition filed under Article 226 of the Constitution of India assails the final order dated 22.08.2013 Annexure P/5 passed by the Board of Revenue, Gwalior in Case no.Nigrani 974-1/2012 whereby while setting aside the order of Commissioner, Narmadapuram dated 21.02.2012, the order of SDO Multai, District Betul dated 13.04.2011 Annexure P/2 has been affirmed. 2 . By the order dated 13.04.2011, Annexure P/2, the SDO allowing the appeal of the respondent no.5 set aside the order dated 27.12.2010 of Naib Tehsildar i.e. Annexure P/1.

2.1 By the original order dated 27.12.2010, the Naib Tehsildar among the competing claims of the respondent no.5 and the petitioner for appointment to the post of Kotwar, Gram Chichkheda, Tehsil Multai, District Betul accepted the application of the petitioner.

2.2 Consequent upon the order of the Naib Tehsildar dated 27.12.2010, the petitioner had been appointed as Kotwar Vide Annexure P/2.

3. After hearing the learned counsel for the rival parties, it is obvious that the contest between the respondent no.5 and the petitioner was on two issues which is as follows :

(1) Whether the respondent no.5 falls within the expression "near" relative found in Rule 4 (2) of the Rules regarding Appointment, Punishment and Removal of Kotwars and their Duties framed under Section 230 read with 245 of the M.P. Land Revenue Code.

(2) As to whether the fact of the respondent no.5 serving as a Aanganwadi Karyakarta, Village-Chichkheda is disabled or not eligible to be appointed as Kotwar.

4. For ready reference and convenience, relevant Rules 2, 3, 4 and 5 are Digitally signed by MONIKA CHOURASIA Date: 2023.02.10 11:27:01 IST reproduced below :-

"2. No person shall be eligible for the post of Kotwar, who-

(i) is, in the opinion of the appointing authority, not of good character and antecedents;

(ii) is, in the opinion of the appointing authority, unfit through infirmity of body or mind, to perform the duties of the post;

(iii)is below the age of 21 years;

3. The appointment of Kotwar shall rest with the Collector, Sub-Divisional Officer, Assistant Collector of the first grade, Assistant Collector of the second grade if specially empowered by the Collector in this behalf. Tahsildar or Naib-Tahsildar who is empowered to exercise the powers of a Tahsildar under Sub-section (2) of Section 24 of the Madhya Pradesh Land Revenue Code, 1959(No.20 of 1959):

Provided that the Collector may specially empower a Naib- Tahsildar who has not been invested with the powers of a Tahsildar under the said Code, to make appointments under this ruled.

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 Sabha in whose area the post of Kotwar is vacant, shall appoint an eligible person on the post of Kotwar, if the person proposed in the resolution does not fulfil the qualification prescribed in rule 2, Signature Not Verified SAN the authorised Revenue Officer shall reject the resolution after Digitally signed by MONIKA CHOURASIA recording the reasons in writing and intimate the Gram Sabha and Date: 2023.02.10 11:27:01 IST 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.] (2) In making appointment of a Kotwar under Sub-rule (1) preference may be given to the near relative of the ex-Kotwar, other things being equal.

Note.- If the vacancy is caused by the suspension or dismissal of the previous incumbent for bad character, misconduct or disobedience and the effect of the dismissal would be lost if a member of his family is appointed to succeed him, relatives of the previous incumbent may not be appointed.

5. (1) The appointing authority may fine, suspend or dismiss a Kotwar for,-

(i) being of bad character, actually participating in any kind of undesirable activities or acting in any manner which, in the opinion of the appointing authority, is not in public interest;

(ii) willful breach of rules:

Provided that the amount of fine imposed at any one time shall not exceed Rs.5.

(2) Action should be taken on reports made by the Police against Kotwars and result thereof be intimated to the police forthwith.

SAN (emphasis applied) Digitally signed by MONIKA CHOURASIA Date: 2023.02.10 11:27:01 IST 5

5. A bare perusal of Rule 4 reveals that on the arising of a vacancy on the post of Kotwar and after receiving the resolution passed by the Gram Sabha of the area concerned, the competent authority shall appoint an eligible person on the post of Kotwar, unless she/he suffers any disqualification stipulated in clauses (i),(ii) and (iii) of Rule 2. This provision further provides that if all the other attributes of the candidates are found to be equal, then preference could be given to near relative of the former Kotwar.

6. In the instant case, the respondent no.5 is the widow of the former Kotwar, while the petitioner is the brother. It is also not disputed that Gram Sabha had passed resolution in favour of petitioner for appointment as Kotwar.

The Commissioner and the Board of Revenue have decided the cases after adjudicating the aforesaid two issues and the Board of Revenue has ultimately held that the mere fact of respondent no.5 being employed, can not be a dissuading factor to appoint the said respondent no.5 as Kotwar since there is no such disqualification prescribed in the Rules. The authorities have also held that the respondent no.5, who is the widow of the former Kotwar, is a closer relative as compared to the petitioner, who is the brother of the former Kotwar. 6.1 The question which falls for consideration is as to whether the employment of the respondent no.5 as Aanganwadi Karyakarta at the time of the selection and appointment for the post of Kotwar can be a disqualification for appointment as Kotwar.

6.2 In the considered opinion of this Court, since the disqualifications are exhaustively provided in Rule 2, no other factor can be introduced as Signature Not Verified disqualification. Thus, no discretion is left to the selecting agency to disqualify a SAN candidate merely because the candidate is in employment at the time of applying Digitally signed by MONIKA CHOURASIA Date: 2023.02.10 11:27:01 IST for the post of Kotwar. As such, the first objection of the petitioner falls.

7. As regards whether petitioner or respondent no.5 are closer relatives of the former Kotwar, the scheme of the Rules provides that other things being equal, preference may be given to a near relative. The facts reveal that the other attributes of the petitioner as well as the respondent no.5 appear to be equal and therefore, this Court needs to decide as to whether the brother or widow is to be preferred as a near relative.

8. In the considered opinion of this Court, the widow may not be the blood relative of the former Kotwar but by the very relationship which stems from marital ties the widow will have to be treated as a nearer relative than the brother for the purpose of Rule 4.

9. The objection as to whether the resolution of Gram Sabha is to be given due importance also needs to be considered. Provision of Rule 4 reveals that Gram Sabha by a resolution recommends a particular person for appointment as Kotwar but whether the said person so recommended is eligible and whether has to be given preference or not has to be seem by competent authority, and therefore, the resolution of the Gram Sabha is a mere recommendation and not binding on the competent authority.

10. At this juncture, the learned counsel for the petitioner has also raised a contention which was though not considered by any of the authorities, but deserves consideration of this Court. It is submitted that respondent no.5, being a woman, will not be able to discharge the arduous functions of Kotwar. To say the least, this argument is rejected at the very outset as it smacks of gender bias and thus is hit by Article 14 and 16 of the Constitution.

11. In view of aforesaid analysis, this Court has no manner of doubt that Digitally signed by MONIKA CHOURASIA Date: 2023.02.10 11:27:01 IST the order passed by Board of Revenue does not deserve any interference in the 7 limited supervisory and writ jurisdiction of this Court. The petition accordingly stands dismissed.

(SHEEL NAGU) JUDGE m/-