Orders removing or dismissing patwaris, even though passed under the Classification Control Rules, are also orders passed under Section 104(2) of the Code and are therefore subject to interference in appeal or revision under the Code.

S.K. Chawla, J.

1. This order shall also govern disposal of Misc. Petition No. 328/83, Makarand Singh v. The Board of Revenue and Ors. and Misc. Petition No. 422/86, Kanta Prasad (deceased) through L. Rs. Bharat Bhushan and Ors. v. State of M. P. and Ors..

2. In all these cases, orders of removal or dismissal of patwaris were passed preceded by departmental enquiries held against them. The matters ultimately reached Board of Revenue either in second appeal or revisions at the instance of the patwaris. In all the cases, the Board of Revenue held that second appeal or revision filed before it were not maintainable, since orders of removal and dismissal had been passed under M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter called the 'Classification Control Rules'), which could not be interfered by the Board of Revenue, being not orders passed under the M. P. Land Revenue Code, 1959 (hereinafter called the 'Code'). All these petitions under Articles 226/227 of the Constitution of India have been filed to quash the said orders of the Board of Revenue.

3. The power to appoint a patwari is conferred on the Collector under Section 104(2) of the Code. That power has been delegated by State Government notifications to S.D.O. as also to Record-of-rights Officer. By virtue of Section 16 of the M. P. General Clauses Act, the power to appoint includes the power to suspend or dismiss. Hence where a patwari is removed or dismissed, the source of power is the same, namely, Section 104(2) of the Code. Such an order is therefore, an order under the Code. See Ramkishan Gaurishankar v. State of M. P. and Ors., in 1977 MPLJ 183.

4. It would not make any difference if such an order was preceded by a departmental enquiry held against the patwari. It has been reasoned by the Board in the impugned orders that such orders were passed under the provisions of Classification Control Rules. Leaving aside orders passed with respect to other officers or servants, confining ourselves to order of removal or dismissal of a patwari, albeit passed under the provisions of Classification Control Rules it is not anytheless and order under Section 104(2) of the Code. An illustration will make this point clear. An order dismissing an Agriculture Assistant of Agriculture Department of the State of Madhya Pradesh is passed after holding a departmental enquiry against him under the provisions of Classification Control Rules. Such an order is only an order passed under the Classification Control Rules and cannot be said to be an order passed under the Code. That cannot be said with respect to an order removing or dismissing a patwari after a departmental enquiry held against him under the provisions of Classification Control Rules. That order may be an order under the Classification Control Rules, but it is also an order under Section 104(2) of the Code. That being so, it is liable to interference in appeal or revision under the scheme of the Code. In Shrigopal v. State of M. P. and Ors., 1979 RN 312, an order compulsorily retiring a patwari by way of punishment, was held to be subject to second appeal by the Commissioner. The Commissioner in that case had held that the order had been passed under the provisions of Classification Control Rules, and therefore, second appeal before him was not maintainable. It was held by this Court that the" Commissioner was wrong and that the order in question being passed under the provisions of the Code, second appeal was maintainable before the Commissioner under Section 44(2) of the Code. It would not, therefore, matter in the present cases even if the orders removing or dismissing patwaris were passed as a sequel to departmental enquiries held against them. Such orders would not cease to be orders passed under the Code. As such they would be open to interference in appeal or revision under the Code.

5. In one of the impugned orders, it has been reasoned by learned Member of the Board that order under