- (1.) The petitioner challenges the order passed by the Deputy Commissioner allowing the appeal filed by the private respondent against the appointment of the petitioner as Chowkidar. The Collector had passed an order favouring the petitioner holding that he was a B.A., B.Ed. and son of deceased Chowkidar and he was a person of good character in the village and wherever any administrative officer visited the village, he used to help in the Government work. He was finding him as a candidate better than the other candidates and particularly the private respondent-Ramesh Kumar, who was 7 th class pass, and though a person of good character, he held that the petitioner was better qualified and entitled to consideration for appointment. In an appeal filed by the private respondents before the Deputy Commissioner, the decision of the Collector was set aside essentially on the ground that the petitioner was a B.A., B.Ed. doing teaching work and due to this reason, he was not suitable candidate to do the duty of a Chowkidar. Weighing the consideration for appointment of the petitioner, the Deputy Commissioner held that many people in the village that are well known, namely, Ex-Sarpanch-Panch and Chairman have recommended the name of the private respondent for appointment as Chowkidar of the Village, whereas only three persons of the Village have made statement in favour of the petitioner. It bears out from the record that there was a case registered against the petitioner for offence under Section 323, but it was compounded by the parties entering into a compromise.
(2.) The learned counsel for the petitioner states that if he had done his graduation and also held B.Ed. qualification, that ought not to be taken as disqualification for the post of a Chowkidar. On the other hand, he must be treated as educationally better qualified for the post. The learned counsel would also contend that the Deputy Commissioner himself had no power to make the appointment and the best course was to remit the matter to the Collector to consider the appointment of the private respondent. The learned counsel would rely on a Division Bench ruling of this Court in Harbans Singh Versus The Financial Commissioner, Appeals-I, Punjab and others, 2007 5 RCR(Civ) 838, that held that Financial Commissioner would have no jurisdiction to interfere with the order passed by the Collector which was affirmed by the Commissioner for the appointment of a Lambardar. The appellate and the revisional authority have no power to make any appointment and that it could be exercised only by the Collector and if in the given case, the Collector's recommendation was not accepted, it should only be remitted to the Collector for reconsideration.
(3.) It is a proposition well taken that the decision of a Collector in the manner of appointment of a menial or a ClassIV employee shall not normally be subjected to any reappraisal by the appellate or the revisional authority. In the context of the intervention made by the revisional authority, the Division Bench was holding that the Commissioner shall not himself make the appointment, but I do not find any observation in the order that the Commissioner does not have the power to make such appointment. The very purpose of preferring the appeal to a higher forum will be lost if the higher forum can only consider in the case of rival candidates whether a particular decision taken by the appointing authority was justified or not. The point for consideration in appeal or a revision which ought to include a power of reappraisal cannot be understood mechanically as meaning either to approve or disapprove the order of the Collector. By the very nature of things through the powers exercised by the higher authorities when the correctness of the order passed by the first authority is assessed, a meaningful intervention would be possible only if the decision of the first authority could be substituted by any other order of selection if there was an error in the choice. I cannot read the judgment of the Division Bench in the manner that the learned counsel for the petitioner wants me to read that the appellate or the revisional authority do not have the power only to set aside the order of appointment and do not have themselves the power to substitute another person in the place who was a rival candidate and who had brought the matter in appeal or revision before the said authority.;