Prasanna B. Varale, J.

By way of present petition, the petitioner challenges the order passed by respondent No.2-Additional Commissioner, Nagpur Division, Nagpur.

2. The petitioner has raised the objection before the Sub Divisional Magistrate, Umrer, submitting therein that the respondent No.1, who was Police Patil of Village Wasi, has not only actively participated in the political activities but also contested the election of Wasi Sahakari Sanstha as a sponsored candidate of political party. It was also submitted that the respondent No.1 also took active participation in canvassing the candidature of his brother in the election. In the reply to the show cause notice issued by the Sub Divisional Magistrate, the respondent No.1 took a defence that he has contested the election for the Managing Committee member and got elected. It was submitted that there is no prohibition to contest election of the society for the Police Patil. The Sub Divisional Magistrate finding favour with the submission and observing that respondent No.1 being Police Patil though prohibited to take part in political activities, participated in the election and as such the Sub Divisional Magistrate accepted the contention of the objector/petitioner and by order dated 15th December, 1994, directed the removal of the service of respondent No.1. The order was challenged by respondent No.1 before the Additional Commissioner, Nagpur in the appeal bearing Appeal Case No. 35/1994. The Additional Commissioner, by order dated 07th August, 1995, allowed the appeal and thereby the order of Sub Divisional Magistrate regarding dismissal of respondent No.1 was set aside.

3. The short question before us is as to whether the appellate authority has considered the moot question of the prohibition on the Police Patil in taking active participation in the political activities and/or contesting election. The perusal of the order reflects that the Additional Commissioner has lost the sight of the facts and the order reflects the non application of mind of the authority passing the impugned order.

4. It is not in dispute that the respondent No.1 was Police Patil of village Wasi. The relevant rules in this behalf are the Maharashtra Village Police Patil Act, 1967 and the appointment of the Police Patil as well as the regulation of the duties of Police Patil, are stated in the said Act. We may state here that though the Sub Divisional Magistrate has referred to as Section 12 of the Maharashtra Village Police Act, 1967, the relevant provision is Order 12 passed under the Maharashtra Village Police Act, 1967. It reads thus:-

“12. Application of Bombay Civil Services Rules, etc.:-

The State Government may, by an order in writing, apply to Police Patils such of the provisions of the Bombay Civil Services Rules or the Bombay Civil Services Conduct, Discipline and Appeal Rules, as are not inconsistent with the Act and the rules made thereunder.”

5. It will be also useful to refer that the said orders are passed in exercise of powers conferred by sub Section (3) of Section 5 of the Maharashtra Village Police Act, 1967. The relevant provision reads thus:-

“5. (1) The State Government shall appoint one or more Police Patils for a village or group of villages.

(2) …

(3) The recruitment, remuneration and other conditions of service of Police Patils shall be such as may, from time to time, be determined by the State Government by general or special order.”

The Maharashtra Civil Services (Conduct) Rules, 1979 came into force on 12th July, 1979 and the said Rules now govern the field. It will be also useful to refer Section 1(3) of the said Rules. The same reads thus:-

“1. (3) Except as otherwise provided by or under these rules, these rules (and also any rules and orders in relation to matters covered by these rules duly approved by Government from time to time and not inconsistent with the provisions of these rules) apply to all persons appointed to civil services and posts in connec