Madhya Pradesh High Court
Dinesh Singh vs The State Of Madhya Pradesh on 9 November, 2017
Bench: Sanjay Yadav, S.K. Awasthi
1 WA.401.2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE S.K. AWASTHI
WRIT APPEAL 401 OF 2017
Dinesh Singh
Vs.
The State of Madhya Pradesh and others
*******************
Shri M.P.S. Raghuvanshi, learned counsel for the
appellant.
Shri Praveen Newaskar, learned Government Advocate
for respondents No. 1 to 4/State.
Shri D.P. Singh, learned counsel for respondent No. 7.
******************
Whether approved for reporting : Yes/No
ORDER
(09/11/2017) Per Justice Sanjay Yadav:
Dismissal of Writ Petition No.2667/2011 on 20/07/2017, has led the petitioner file present appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005.
(2) The Writ Petition was directed against the order
2 WA.401.2017 dated 08/04/2011 passed by the Commissioner, Chambal Division, Morena.
(3) The contention of the petitioner was that in the year 1996, on 26/06/1996, Gram Panchayat Khandoli, Janpad Panchayat Jaura passed the resolution by majority appointing the petitioner as Panchayat Karmi. The appointment order was issued on 28/06/1996. The said appointment was challenged by one Devendra Singh (since deceased, having expired on 29/07/2010) before the Sub-Divisional Officer, Joura, on the ground of he being appointed prior vide resolution dated 19/02/1996. Be it noted that the said resolution (which is on record at Page No. 81 of the present compilation) recorded the name of present appellant also as a candidate within zone of consideration along with seven others including the said Devendra Singh. Be that as it may. The Sub- Divisional Officer by order dated 06/09/2001 dismissed the appeal filed by Devendra Singh.
(4) This order i.e. order dated 06/09/2001 reveals the fact that earlier by order dated 10/01/2000, an appeal filed by said Devendra Singh was consigned to the record room after recording a finding of his having been appointed in prior point of time. The said order was set aside in Revision Case No.20/99-2000/ fu-iapk- by Collector, Morena by his order dated 20/06/2000 for rehearing and fresh decision on all issues. On remand the fresh order came to be passed on 06/09/2001 wherein the Sub- Divisional Officer in pursuance to direction recorded a finding in respect of the passing of Resolution dated 19/02/1996. In paragraph 6, the Sub-Divisional Officer 3 WA.401.2017 observed:-
^^6- dysDVj ftyk eqjSuk }kjk vius U;k;ky;hu iz0Ø0 20@99&2000@fux-iapk-@ esa ikfjr vkns'k fnukad 20-06-2000 ds in 3 esa ;g Li"V fd;k x;k gSA fd xzke iapk;r ds Bgjko fnukad 19-02-96 ls nsosUnz flag dh iapk;rdehZ ds in ij fu;qfDr gqbZ gS] tcfd izkslhfM+ax jftLVj esa ,slk dksbZ Bgjko ugha gS] ftldh tkap vko';d gSA bl ckor~ esjs }kjk rRdkyhu ,-Mh-bZ-vks- cyohj flag dq'kokg] ,oa ljiap xzke iapk;r [kkaMkSyh ds dFku Hkh fy;s x;sA ftUgksus fnukad 19-02-96 dks xzke iapk;r dh cSBd gksuk ,oa loZlEefr ls nsosUnzflag dks iapk;rdehZ fu;qfDr dk Bgjko fd;k tkuk crk;k x;k gSA buds dFkuksa dh iqf"V izdj.k esa layXu izekf.kr ,oa QksVks izfr;ka ¼nLrkostksa½ ls gksrh gSA lkFk gh orZeku ljiap dk dFku ysus ij muds }kjk ;g O;Dr fd;k x;k] fd nsosUnz flag gh iapk;rdehZ gSA os gh iapk;r dk dk;Z dj jgs gSA esjs iwokZf/kdkjh }kjk ftl izkslhfM+ax fjtLVj ds voyksdu mijkar vkns'k fnukad 10-01-2000 ikfjr fd;k Fkk] og jftLVj vc izdj.k esa dysDVj egksn; dh vksj ls izkIr ugha gqvk gSA^^ (5) The Sub-Divisional Officer however declined to entertain the appeal against the Resolution being not maintainable. (The non-maintainability of appeal was because of the decision in "Sagar Machhua Sahakari Samiti, Seoni Vs. Chief Executive Officer, Janpad Panchayat, Seoni and another [2008(2) MPLJ 194]". However later on, with the decision in "Devidayal Raikwar Vs. State of M.P. and others [2008(4) MPLJ 647]" the appeal has been held to be maintainable). The Sub-Divisional Officer further observed that the appellant therein i.e. Devendra Singh is a prior appointee and since had not been removed will continue to work ¼pwafd vihykUV iwoZ ls fu;qDr iapk;rdehZ gS] orZeku esa Hkh dk;Zjr gS] ftls dHkh in ls ugha gVk;k x;k gSA vr% os iwokZuqlkj iapk;rdehZ ds in ij cus jgsaxs½-
(6) At this stage, it is pertinent to note that the appellant has relied on document filed in the petition as Annexure P/5 to establish that said Devendra Singh was
4 WA.401.2017 not discharging as Panchayat Karmi between 19.02.1996 to 10.01.2000. This aspect will be adverted to little later.
(7) The order dated 06/09/2001 was challenged before Collector/Additional Collector which was decided on 06/09/2010. However the contesting respondent No. 1 i.e. Devendra Singh had expired prior to the decision on 29.07.2010.
(8) The Additional Collector while setting aside the order passed by the Sub-Divisional Authority acknowledged the appointment of present appellant, by holding:
^^vukosnd dz0 1 }kjk izLrqr Bgjko Øz0 4 fnukad 19-02-96 dh udy ,oa xzke iapk;r [kaMksyh ds izkslhfMax jftLVj ls feyku djus ij nksuksa esa dkQh fHkUurk gSA v/kh0 U;k;ky; }kjk ewy jftLVj dks cxSj feyku fd;s fdl vk/kkj ij r; dj fn;k fd dysDVj U;k;ky; ls iwoZ izkslhfMax jftLVj cnydj QthZ jftLVj yxk;k x;k gSA dsoy lfpo cychj flag dq'kokg ,oa ljiap ds vk/kkj ij dysDVj U;k;ky; dks nks"kh Bgjk;k tkuk mfpr ugha gSA ;fn izkslhfMax jftLVj cnyk x;k FkkA rks v/kh0 U;k;ky; } kjk rRle; vkijkf/kd izdj.k D;ksa ntZ ugha djk;k x;kA vuqfoHkkxh; vf/kdkjh }kjk ikfjr vkns'k fnukad 6-09-2001 esa tkucw>dj =qfV ifjyf{kr gksrh gSA cxSj izek.k fcuk tkap mUgksaus fdl vk/kkj ij dysDVj U;k;ky; }kjk okil izkIr izkslhfMax jftLVj QthZ gksuk ik;k x;k gSA izdj.k ds lkFk layXu jftLVj esa ladYi] izLrko fofHkUu fnukadksa esa ifjr fd;s x;s gSaA ftuesa fHkUu&fHkUu fnukadksa esa i`Fkd iap@ljiap ,oa vU; iapk;r inkf/kdkfj;ksa ds gLrk{kj vafdr gSA bl iath dks ns[kdj dgha Hkh bldh lR;rk ds laca/k esa lansg mRiUu ugha gksrkA v/kh0 U;k;ky; }kjk ek= ekSf[kd dFku ds vk/kkj ij bl iath ds laca/k esa lansg dj vukosnd dks vuqfpr ykHk iznku fd;k x;kA izdj.k esa v/kh0 U;k;ky; }kjk dwV jfpr nLrkostksa ds vk/kkj ij dk;Zokgh izpfyr dh xbZ gSA ftldh ftEesnkjh ml le; inLFk rRdkyhu vuqfoHkkxh; vf/kdkjh dh Hkh curh gSA ftUgksaus mDr dwV jfpr dk;Zokgh dks utj vankt djrs gq;s vkns'k ikfjr fd;k gSA fuxjkuh drkZ vkosnd dk iapk;r dehZ fu;qfDr dk Bgjko dz0 2 fnukad 26-06-96 mfpr ,oa fof/kor~ izrhr gksrk gSA blesa dksbZ lansg ugha gSA 5 WA.401.2017 v/khuLFk U;k;ky; ds vkns'k esa xaHkhj =qfV;ka gksus ds dkj.k fujLr fd;k tkrk gSA vr% v/kh0 U;k;ky; }kjk iz'uk/khu vkns'k esa vukosnd dz0 1 ds Qksr gksus ls iapk;r dehZ dk in fjDr gks x;k gSA izdj.k esa iwoZ ls gh rRdkyhu xzke iapk;r }kjk jftLVj ds Bgjko dz0 2 fnukad 26-06-96 ij vkosnd dks iapk;r dehZ in ij dh xbZ fu;qfDr dks gh ekU; fd;k tkosA (9) That the order dated 06/09/2010 was challenged by one Siyaram, Panch of Gram Panchayat Khandoli wherein an objection was raised on behalf of present appellant as to maintainability of Revision on the grounds, that Siyaram was not an aggrieved person and had no locus. The Additional Commissioner allowed the Revision holding:-
^^5- mHk;i{k ds fo}ku vf/koDrkvksa ds rdksZ ij fopkj fd;k rFkk vkosnd ds fo}ku vf/koDrk }kjk izLrqr U;k; n`"VkUrksa o mRrjoknh dz-2 ds fo}ku vf/koDrk }kjk izLrqr fyf[kr cgl o v/khuLFk U;k;ky; ds vfHkys[k dk voyksduu fd;kA lEiw.kZ fjdkMZ ds voyksdu ls ;g Li"Vr% izekf.kr gksrk gS fd e`rd nsosUnzflag o"kZ 1996 ls o"kZ 2010 rd yxkrkj iapk;rdehZ in ij dk;Zjr jgk gSA mldh fu;qfDr fnukad 19&2&96 dks xzke iapk;r ds izLrko@Bgjko dzekad&4 ls gqbZA bl izLrko dks QthZ Bgjkus ckor~ fjdkMZ ij dksbZ izek.k ugha gSaA vij dysDVj eqjSuk dk bl ckor~ fudkyk x;k fu"d"kZ fujk/kkj gSA eq[; dk;Zikyu vf/kdkjh tuin iapk;r tkSjk ds vkns'k fnukad 21&3&96 ls Hkh ;g izekf.kr gS fd e`rd nsosUnzflag iapkrdehZ in ij fu;qDr FkkA bl vkns'k dks Hkh QthZ ekuus dk dksbZ vk/kkj ugha gSaA fo}ku vuqfoHkkxh; vf/kdkjh tksjk ds }kjk foLrkj iwoZd foospuk djrs gq, ifjr vkns'k fnukad 6&9&2001 rF;ksa ij vk/kkfjr gksdj fof/klaxr gSA bls vikLr djus dk vij dysDVj dk vkyksP; vkns'k fnukad 6&9&2010 fof/k foijhr gSA vr,o ;g fuxjkuh Lohdkj dh tkrh gS rFkk vij dysDVj eqjSuk ds }kjk ikfjr vkyksP; vkns'k fnukad 6&9&2010 fujLr fd;k tkrk gSA lkFk gh funsZ'k fn, tkrs gSa fd nsosUnzflag dh e`R;q ds dkj.k iapk;rdehZ dk in fjDr gksus ds QyLo:i u, fljs ls izfdz;k dk ikyu djrs gq, iapk;rdehZ in ij ;ksX; O;fDr dh fu;qfDr dh tk,A (10) In the interregnum in pursuance to order passed by the Collector, Morena in exercise of his powers under Section 86 of Adhiniyam 1993, the proceedings were initiated for appointment of fresh Panchayat Karmi after 6 WA.401.2017 the death of Devendra Singh by which an order dated 04/05/2011 passed in W.P. 2667/2011 (S) was subjected to final order. This led to the impleadment of respondent No. 7 who claims to be meritorious in fresh selection.
(11) These myriad facts led the learned Single Judge observe:-
"It appears that all the parties in lis stood in pari delicto.
If contention of petitioner is accepted then it would amount to revalidating the alleged appointment order issued in favour of the petitioner in 1996 after 21 years. The waiting list pales into oblivion after 12 months or 18 months as the case may be, subject to extension on substantial ground by the employer. While applying the said analogy, appointment order of petitioner could have been revalidated immediately after 1 and 2 years as the case would have been but not certainly after 21 years. Interestingly, petitioner never pressed for any interim relief or any early decision of the case before lower authorities, therefore, in such complexed factual matrix, equity cannot be weighed in favour of petitioner after lapse of 21 years. Therefore, fresh selection on merit is imperative and in the interest justice.
Therefore, in the interest of justice and balancing the equity, the revisional Court has rightly given direction for initiating appointment process afresh and this Court intends to upheld said part of the order so that equity can be balanced. If Panchayat has already completed appointment procedure in accordance with law then Panchayat is at liberty to follow the compliance and consequent action and if any appointment procedure had not been initiated earlier then Panchayat is directed to initiate appointment procedure for appointment of Panchayatkarmi in accordance with law. Petitioner and respondent No.7 are allowed to participate in the proceedings if both are 7 WA.401.2017 otherwise eligible for appointment to the post of Panchayatkarmi."
(12) It is urged that the appellant is not at fault. It is contended that the order passed in writ petition deserves to be set aside on two grounds; firstly, the second revision was not tenable before the Commissioner, secondly, Panch had no locus to challenge the order as he was not the person aggrieved, nor was there any resolution by the Gram Panchayat in his favour to challenge the order passed by the Additional Collector.
(13) It is urged that learned Single Judge has grossly erred in not addressing these vital issues, which, it is contended, if decided ought to have led to quashment of the order passed by the Commissioner.
(14) As to the contention regarding maintainability of second revision, said issue is no more res integra with the decision of "Abdul Hasan Qureshi Vs. State of M.P. and others [2008(4) MPLJ 546]" wherein it is held:
"21. It is not a trite law that revision against revisional order does not lie at all. Revision against revisional order is not unknown. Two relevant Full Bench judgments may be successfully cited below:-
Ravishankar Dubey and others Vs. Board of Revenue and others, 1973 MPLJ (FB) 43 = 1972 JLJ 934 and Municipal Council Khandwa Vs. Santosh Kumar and others, 1975 MPLJ (FB) 33 = 1975 JLJ 48. Aforesaid cases do not relate to the revision under Panchayat Adhiniyam, therefore, I do not feel it necessary to dwell upon them any more. Reference has also been made to the Division Bench decision of this Court in the case of S.M Sahkari Samiti Vs. 8 WA.401.2017 CEO, Janpad Panchayat, 2008(2) MPLJ 194 = 2008(1) M.P.H.T. 254, wherein it has been held that there can be no doubt that a resolution can be challenged in an appeal or revision as per substantive provision of the Panchayat Adhiniyam. However, the case of S.M Sahkari Samiti (supra), relates to a resolution of Janpad Panchayat granting thereby a contract for fisheries. It was not in relation to selection/appointment of Panchayat Karmi and was not governed by the provisions of Panchayat Karmi Yojna. Grant of contract for fisheries and appointment of Panchayat Karmi are distinct matters and are governed by distinct provisions. There was no occasion in the case of S.M. Sahkari Samiti (supra) to examine the scope and forum for a challenge to the resolution with reference to the provisions of Panchayat Karmi Yojna. Therefore, no further valuable assistance would be available to the parties in the present case from the decision of S.M. Sahkari Samiti (supra)."
(15) The said judgment has since been affirmed by the decision in Division Bench in Ramkinkar Vishwakarma Vs. State of M.P. and others [2012(2) MPLJ 690].
(16) In view whereof, the contention raised on behalf of the appellant that second revision was not tenable before the Commissioner has no legal foundation. Consequently, it stands rejected.
(17) As regard to the next contention pertaining to locus standi of Sitaram, Panch of Gram Panchayat Khandoli, Janpad Panchayat Jaura (who as stated across the Bar has expired on 20.06.2015) it is contended on behalf of the appellant that he was not the person aggrieved as the person aggrieved was Devendra Singh who expired during pendency of appeal before Additional Collector. It is urged that it was not within the right of a Panch of 9 WA.401.2017 Gram Panchayat to have filed a revision without there being a resolution in his favour by the Gram Panchayat authorizing him to do so.
(18) Trite it is that a person can be said to be aggrieved only when he is denied a legal right by someone who has legal duty to do something or to abstain from doing something. In "Mani Subrat Jain and others Vs. State of Haryana and Others [(1977) 1 SCC 486]", it is held:
"9. ........It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. ......
(19) When the status of respondent No.6 to file a revision against the order passed by the Additional Collector is examined on the anvil of principle as laid down in Mani Subrat Jain (supra), the appellant, in our considered opinion, is justified in raising the grievance against locus of respondent No.6 to maintain the revision petition as no material is commended at that a Panch of a Gram Panchayat without being authorized by the Gram Panchayat is a person aggrieved in respect of the appointment/non-appointment of Devendra Singh [since deceased]. Thus, the revision preferred by respondent No.6 before the Additional Commissioner was not tenable in the eyes of law.
(20) The issue, however, which still begs consideration 10 WA.401.2017 is as to whether in the given facts of the present case wherein the appellant who claims to have been appointed vide resolution dated 26.06.1996 fails to establish of having been given a joining and the said right does not get crystallized; coupled with the fact that at no point of time since 1996, the appellant brought an independent proceeding to establish his right of appointment; and that, it was only in an appeal preferred by said Devendra Singh the present appellant had taken a defence of being appointed vide resolution dated 26.06.1996, whether appellant would be entitled to any relief as has been granted by the Additional Commissioner, because with the death of Devendra Singh though technically the appeal before Additional Collector did not abate, but the present appellant who had preferred an appeal against the order affirming the appointment of said Devendra Singh lost the right of action against the dead person.
(21) It is also a matter of record that Devendra Singh died during pendency of appeal before the Additional Collector. Since the proceedings were brought in respect of the cause of action arising in favour of said Devendra Singh and there was no cause led in fore by the present appellant against his non-appointment, in our considered opinion, no right of action survived in favour of the present appellant with the death of Devendra Singh during pendency of appeal before the Additional Collector, therefore, in our considered opinion, it was beyond the jurisdiction of Additional Collector to have adjudicated the matter and upheld the resolution dated 26.06.1996. Thus order passed by the Additional 11 WA.401.2017 Collector dated 06/09/2010 was non est in the eyes of law as would have created any right in favour of the appellant.
(22) It was in above fact situation, the learned Single Judge observed that the parties in lis stood in pari delicto. Such an observation in the given facts of the present case cannot be taken exception of. It is the appellant who has to blame himself in not taking recourse to law seeking implementation of resolution dated 26.06.1996 and instead contested the claim put forth by Devendra Singh who continued to work from 1996 to 2010. Though the appellant has placed reliance on a communication dated 23.02.2001 (Annexure P-5 in writ petition) to substantiate the contention that the said Devendra Singh was not working as Panchayat Karmi, however, careful reading of this communication dated 23.02.2001 does not support the contention raised on behalf of the appellant as the said communication is addressed to the petitioner who at no point of time had joined the post of Panchayat Karmi.
(23) Learned Single Judge while taking note of the fact that in 2010 with the death of Devendra Singh since the post of Panchayat Karmi had fallen vacant led the Collector, Morena take steps pursuant to powers conferred under Section 86 of Adhiniyam 1993 and take recourse to appointment of fresh Panchayat Karmi issued the direction that if Panchayat has already completed appointment procedure in accordance with law then Panchayat is at liberty to follow the compliance and consequent action thereon.
12 WA.401.2017 (24) The said direction when is tested on the anvil of given facts of the present case does not warrant any interference as evidently the post of Panchayat Karmi, Gram Panchayat Khandoli, Janpad Panchayat Jaura had fallen vacant because of the death of said Devendra Singh. There was no crystallization of right in favour of the present appellant who claimed his appointment on the basis of resolution dated 26.06.1996.
(25) Having, thus, considered, we are not inclined to interfere with the order passed by the learned Single Judge. Consequently, appeal fails and is dismissed.
(26) There shall be no costs.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
(09/11/2017) (09/11/2017)
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