- (1.)CHALLENGING the order dated 20/06/2013 passed by the Writ court in W.P. No.9264/09, this appeal has been filed under Section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005.
(2.)RECORDS indicate that an advertisement was issued by the Gram Panchayat in question on 30.07.2007 calling for application from eligible candidates for the appointment on the post of Panchayat Karmi. In pursuance to the advertisement, 17 persons including the appellant herein and respondent no. 5, the original writ petitioner, applied. A resolution was passed by the Gram Panchayat on 21.8.2007 appointing the appellant herein Smt. Savitribai Lodhi on the post of Panchayat Karmi. It is seen that the Gram Panchayat passed a resolution on 21.8.2007 proposing appointment of one Shri Rajendra S/o. Raghuvir Singh Lodhi, who had obtained 51.2% marks. However, as this resolution was contrary to the policy of the State Government, the Sub Divisional Officer remanded the matter back to the Panchayat and therefore, a second resolution was passed on 31.8.2007, as indicated hereinabove.
(3.)ACCORDING to the applications submitted and the merit of the candidates, respondent herein Shri Mukesh Chouhan, the original writ petitioner, was placed at Serial no. 1 of the merit list having obtained 64.4% marks and the appellant herein Smt. Savitribai had obtained 55.5% marks. However, on the ground that she is a lady and a candidate belonging to the OBC category, she was given preference and in the resolution passed on 31.8.2007, she was granted appointment. Shri Mukesh Chouhan aggrieved by this, challenged the resolution of the Gram Panchayat before the Sub Divisional Officer and by an order passed on 14.1.2008, the Sub Divisional Officer quashed the resolution and appointment of the present appellant Smt. Savitribai. Aggrieved thereof, Smt. Savitribai filed a writ petition before this court being W.P.No.1915/2008. This was allowed and the order dated 4.3.2009 passed by the Sub Divisional Officer was quashed mainly on the ground that against the resolution, an appeal before the Sub Divisional Officer was not maintainable and the Writ court granted liberty to the parties to assail the resolution afresh before the competent authority. Writ appeal filed having been dismissed and the order of the learned Single Judge having been upheld, the matter went to the Collector, a notified authority under Section 85 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 and the Collector, Sagar by the order dated 29.9.2009 dismissed the application / appeal filed by the original petitioner Shri Mukesh Chouhan and upheld the resolution and the selection of present appellant Smt. Savitribai. On such count, Shri Mukesh Chouhan filed a writ petition and the learned Writ court allowed his writ petition and directed for his appointment on the ground that he is a more meritorious candidate and in the matter of appointment, only preference can be given and no right of appointment accrues to an OBC candidate. The writ petition having been allowed, this writ appeal is filed.
During the course of hearing of this writ appeal, learned counsel for the appellant, Ms. Smita Arora, emphasized on two grounds. Her first contention was that against the order dated 29.9.2009 passed by the Collector, an alternative statutory remedy of appeal is available before the Commissioner and therefore, a writ petition directly before this Court at the instance of the respondent Shri Mukesh Chouhan was not maintainable. Accordingly, placing reliance on certain judgments of this Court to say that when an alternative statutory remedy is available, the writ petition was not maintainable. The first ground canvassed is that the writ petition should have been dismissed. The second ground canvassed is based on certain findings recorded by the Collector in his order dated 29.9.2009. Referring to Para 5 of the order passed by the Collector, it is argued by learned counsel for the appellant that based on the powers available to the Collector under Section 86 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, the Collector has issued an order on 8.9.2008 wherein in clause 6 of his communication, the Collector has laid down a procedure that if any candidate seeking appointment to the Panchayat has more than two children living and if the third child has been born on or after 26.01.2001, the said candidate will be disqualified. She emphasizes that in the present case, as Shri Mukesh Chouhan had a third child which was born after the cutoff date i.e. 26.1.2001, the Collector has found him disqualified for appointment and accordingly, it is said that the appointment of the respondent Shri Mukesh Chouhan was unsustainable and interfering with the same, the Collector has not committed any error. It is pointed out that even though, pleaded in the petition, the learned writ court has not considered this question. Placing reliance on a judgment of Supreme Court in the case of Javed and others vs. State of Haryana and others, 2003 8 SCC 369, learned counsel for the appellant submitted that the provisions prohibiting appointment of a person to any service on the ground of giving birth to a third child after a particular date is a valid condition, on these counts interference into the matter is sought for.