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2011 jk fu 129 2011 RN 129
¼mPp U;k;ky;&iw.kZ U;k;ihB½ (HIGH COURT-FULL BENCH)
U;k- jktsUnz esuu] U;k- vkj-,l- >k rFkk U;k- lat; ;kno
Rajendra Menon, R.S. Jha and Sanjay Yadav, J.J.
dykckbZ ¼Jherh½ fo- e-iz- jkT; rFkk vU;
Kala Bai (Smt.)
Vs
State of M.P. and others
fjV ;kfpdk dz- 16136 lu~ 2003 ¼tcyiqj½( fu.khZr fnukad 7-1-2011A
Writ Appeal No. 16136 of 2003
Decided on: 7.1.2011
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 22 ¼2½ rFkk 104 ¼2½ & dyDVj dks iVokjh dh fu;qfDr dh ‘kfDr;k¡ & e-iz- jkti= esa 9-10-59 dks izdkf‘kr vf/klwpuk dz- 11429&lh vkj&653&lkr&,u&2 fnukad 1-10-59 }kjk mi[kaM vf/kdkjh dks izR;k;ksftr & mi[kaM vf/kdkjh dks iVokjh dks fu;qDr djus rFkk gVkus dh ‘kfDr gSA
¼3½ flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1966 ¼e-iz-½ & fu- 8] vuqlwph & mica/k ds v/khu ‘kfDr;k¡ & mi[kaM vf/kdkjh iVokfj;ksa dh fu;qfDr djus ds lkFk&lkFk vuq‘kklfud izkf/kdkjh gSA
mi;ZqDr vf/klwpuk ds ifj‘khyu ls ;g Li"V gS fd vU; O;fDr;ksa ds vykok /kkjk 104 ¼2½ ds v/khu iVokjh dks fu;qDr djus dh dyDVj dh ‘kfDr jkT; ljdkj }kjk lafgrk dh /kkjk 22 ¼2½ ds v/khu ‘kfDr;ksa dk iz;ksx djrs gq, mi;qZDr mfYyf[kr vf/klwpuk tkjh dj mi[kaM vf/kdkjh }kjk iz;qDr fd;k tkuk funsf‘kr fd;k gS rFkk] blfy,] mi;qZDr fof/k ds mica/kksa dh n`f"V ls mi[kaM vf/kdkjh dks iVokjh dks fu;qDr djus dh ‘kfDr gSA 1966 ds fu;eksa ds fu;e 8 rFkk mlls layXu vuqlwph ds mica/k] lafgrk ds dkuwuh mica/kksa rFkk mlds v/khu tkjh vf/klwpuk ds i‘pkr~] fojfpr fd, x, Fks] ds vuq:i rFkk mi;qZDr dkuwuh mica/kksa ds vuqlkj gS rFkk ;g mica/k djrk gS fd mi[kaM vf/kdkjh fu;qfDr djus ds lkFk&lkFk vuq‘kklfud izkf/kdkjh gksxkA ¼iSjk 15½
fof/k ds mi;qZDr mica/k rFkk mlds v/khu tkjh vf/klwpuk ds voyksdu ls gekjh lqfuf‘pr jk; gS fd lafgrk dh /kkjk 22 ¼2½ ds v/khu jkT; ljdkj us Lo;a e-iz- jkti= esa fnukad 9-10-59 dks izdkf‘kr vf/klwpuk fnukad 1-10-59 tkjh dj iVokjh dks fu;qDr djus dh ‘kfDr;k¡ mi[kaM vf/kdkjh dks iznRr dh gSa rFkk lafgrk ds vf/kfu;e ds i‘pkr~ tkjh 1966 ds fu;eksa ds fu;e 8 rFkk mlls layXu vuqlwph lafgrk ds dkuwuh mica/kksa dh vuq:irk esa gSa rFkk] blfy,] mi[kaM vf/kdkjh dks iVokjh dks fu;qDr djus dh ‘kfDr rFkk blds ifj.kkeLo:i mls inP;qr djus dh ‘kfDr gSA ¼iSjk 24½
lafgrk dh /kkjk 22 ¼2½ ds mica/kksa rFkk e-iz- jkti= esa 9-10-59 dks izdkf‘kr vf/klwpuk fnukad 1-10-59 ds voyksdu ls iVokjh dks fu;qDr djus dh dyDVj dh ‘kfDr;k¡ mi[kaM vf/kdkjh dks iznRr dh xbZ gSa rFkk blds ifj.kkeLo:i mls iVokjh dks lsok ls gVkus dh ‘kfDr Hkh gSA 2008 jk fu 437] fjV ;kfpdk 7785@2003( fu.khZr fnukad 10-1-2005( fjV ;kfpdk dz- 8777@2003( fu.khZr fnukad 25-9-2008( myVs x,A 2011 jk fu 102 vfHkiq"VA ¼iSjk 26 ¼d½ rFkk ¼x½
¼4½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 104 ¼2½] 22 ¼2½ rFkk 24 & iVokjh dks fu;qDr djus rFkk gVkus dh ‘kfDr;k¡ & mi[kaM vf/kdkjh dks izR;k;ksftr & bl fcanq ij nks [kaM U;k;ihB ds fu.kZ; vFkkZr 1964 ts ,y ts&,l ,u 84 rFkk 1995 jk fu 67& bu fu.kZ;ksa ds ijLij&fojks/kh gksus ds fo"k; esa iw.kZ U;k;ihB dks funsZ‘k & rF;kRed eSfVªDl lkjr% fHkUu & ijLij&fojks/kh u gksuk rFkk mRrj dh vko‘;drk u gksuk vfHkfu/kkZfjrA
mi;qZDr nksuksa fu.kZ;ksa dh lko/kkuh ls tkap djus ij ;g Li"V gS fd fo‘oukFk izlkn ¼iwoksZDr½ ds izdj.k esa] iVokjh dh fu;qfDr dyDVj }kjk dh xbZ Fkh] fdUrq mls mi[kaM vf/kdkjh }kjk lsok ls inP;qr fd;k x;k Fkk] ekaxhyky ¼iwoksZDr½ ds izdj.k esa mi[kaM vf/kdkjh }kjk iVokjh dks fu;qDr fd;k x;k Fkk rFkk mlh vf/kdkjh }kjk mls gVk;k Hkh x;k Fkk rFkk ,slh ifjfLFkfr;ksa esa ftlds vk/kkj ij fo‘oukFk izlkn ¼iwoksZDr½ rFkk ekaxhyky ¼iwoksZDr½ ds izdj.k esa fu.kZ; fn, x, Fks rF;kRed eSfVªDl lkjr% fHkUu Fks rFkk] blfy, [kaM U;k;ihB ds i‘pkr~orhZ ekaxhyky ¼iwoksZDr½ ds izdj.k ds fu.kZ; ds iSjk 9 esa fo‘oukFk izlkn ¼iwoksZDr½ ds fu.kZ; dks lgh gh izHksfnr fd;k gSA ¼iSjk 21½
mi;ZqDr ds voyksdu ls izdV gS fd bl U;k;ky; dh nks [kaM U;k;ihBksa vFkkZr~] fo‘oukFk izlkn ¼iwoksZDr½ rFkk ekaxhyky ¼iwoksZDr½ ds izdj.k esa fojks/k ugha gS] rFkk ,dy U;k;ihB }kjk bu nksuksa fu.kZ;ksa esa ls ‘kq)rk ds laca/k esa funsZ‘k ds mRrj nsus dh vko‘;drk ugha gSA ¼iSjk 22½
fo‘oukFk izlkn ¼iwoksZDr½ rFkk ekaxhyky ¼iwoksZDr½ ds izdj.k esa fn, x, fu.kZ; ds chp esa dksbZ fojks/k ugha gS] tSlk fd rF;kRed eSfVªDl ftlds vk/kkj ij nks fu.kZ; fn, x, Fks iw.kZr% fHkUu Fks rFkk ekaxhyky ¼iwoksZDr½ ds izdj.k esa bl dkj.k ls [kaM U;k;ihB us fo‘oukFk izlkn ¼iwoksZDr½ ds izdj.k dks lgh izHksfnr fd;k] gSA ¼iSjk 26 ¼[k½
(1) Land Revenue Code, 1959 (M.P.) -- Ss. 104 (2) and 22 (2) -- powers of Collector to appoint Patwari -- delegated to Sub-Divisional Officer by Notification No. 11429-CR-653-VII-N-2 dated 1.10.59 published in M.P. Gazette on 9.10.59 -- Sub-Divisional Officer has power to appoint and remove Parwari.
(2) Land Revenue Code, 1959 (M.P.) -- Ss. 22 (2) and 104 (2) -- powers of Collector to appoint Patwari -- delegated to Sub-Divisional Officer by Notification No. 11429-CR-653-VII-N-2 dared 1.10.59 published in M.P. Gazette on 9.10.59 -- Sub-Divisional Officer has power to appoint and remove Patwari.
(3) Civil Services (Classification, Control and Appeal) Rules, 1966 (M.P.) -- R. 8. Sch. -- powers under -- Sub-Divisional Officer is appointing as well as disciplinary authority of Patwaris.
On a perusal of the aforesaid notification, it is clear that apart from other persons the power of the Collector under section 104 (2) to appoint a Patwari has been directed to be exercised by the Sub-Divisional Officer by the State Government by the aforementioned notification issued in exercise of powers under section 22 (2) of the Code and, therefore, the Sub-Divisional Officer has the power to appoint a Patwari in view of the aforesaid provisions of law. The provisions of Rule 8 of the Rules of 1996 and the Schedule appended thereto, which were framed subsequent to the statutory provisions of the Code and the notification issued thereunder, is in tune with and in accordance with the aforesaid statutory provisions and provides that the Sub-Divisional Officer shall be the appointing as well as the Disciplinary Authority of the Patwaris. [Para 15
In view of the aforesaid provision of law and the notification issued thereunder, we are of the considered opinion that the Sub-Divisional Officer has been conferred powers to appoint a Patwari by the State Government itself by Notification dated 1.10.1959 published in the M.P. Gazette, dated 9.10.1959 issued under the provisions of section 22 (2) of the Code and that the provisions of Rule 8 of the Rules of 1996 and the Schedule appended thereto issued subsequent to the enactment of the Code are in conformity with the statutory provisions of the Code and, therefore, the Sub-Divisional Officer has the power to appoint a Patwan and as a consequence thereof the power to dismiss him. [Para 24
The Sub-Divisional Officer has been conferred powers of the Collector to appoint a Patwari in view of the provisions of section 22 (2) of the Code and the Notification dated 1.10.1959 published in the M.P. Gazette on 9.10.1959 and as a consequence thereof he also has the power to remove a Patwari from service. 2008 RN 437, W.P. No. 7785/2003; Decided on 10.1.2005; W.P. No. 8777/2003; Decided on 25.9.2008 overruled. 2011 RN 102 affirmed. [Paras 26 (a) and (c)
(4) Land Revenue Code, 1959 (M.P.) -- Ss. 104 (2), 22 (2) and 24 -- powers to appoint and remove Patwari -- delegated to Sub-Divisional Officer -- two Division Bench judgments on this point i.e. 1964 JLJ-SN 84 and 1995 RN 67 -- reference to Full Bench about of these conflicting judgments --factual matrix substantially different -- held not conflicting and need not be answered.
On a careful scrutiny of the aforesaid two judgments, it is clear that while in the case of Visgwanath Prasad (supra), the appointment of the Patwari had been made by the Collector but he was dismissed from service by the Sub-Divisional Officer, in the case of Mangilal (supra), the appointment of the Patwari had been made by the Sub-Divisional Officer and he was also removed by the same authority and in such circumstances the factual matrix on the basis of which the judgment in the case of Vishwanath Prasad (supra) and Mangilal (supra), were rendered was substantially different and, therefore, the subsequent Division Bench in the case of Mangilal (supra), has rightly distinguished the judgment of Vishwanath Prasad (supra), in para 9 of its judgment. [Para 21
In view of the aforesaid it is apparent that there is no conflict in the two Division Benches of this Court i.e., in the case of Vishwanath Prasad (supra) and Mangilal (supra), and the reference by the learned Single Judge regarding the correctness of either of the two judgments need not be answered. [Para 22
That there is no conflict between the decision rendered in the case of Vishwanath Prasad (supra) and Mangilal (supra), as the factual matrix on the basis of which the two judgments were rendered was totally different and that the Division Bench in the case of Mangilal (supra), on that count has right distinguished the case of Vishwanath Prasad (supra). [Para 26 (b)
R.S. Jha, J.--1. This petition, which involves the question of competence of the Sub-Divisional Officer to dismiss a Patwari from service has been referred to the Full Bench by order dated 8.4.2010.
2. The brief facts, leading to the filing of the petition, are to the effect that the petitioner is the wife of one Fattelal Jharia who was appointed as Patwari on 31.7.1978 and at the relevant time was posted as Patwari in Kundam Tehsil, District Jabalpur.
3. A show-cause notice was issued to him alleging tampering of 'Rin Pustika' on 23.7.1999 to which a reply was filed by him, not being satisfied by which the respondent No.3 issued a charge-sheet to the petitioner's husband on 11.8.1999, which was received by him on 23.9.1999. The petitioner's husband submitted a reply to the charge-sheet on 6.12.1999. Thereafter, the Tehsildar Kundam was appointed as an Inquiry Officer for conducting the Departmental Enquiry against the petitioner's husband and as many as 14 witnesses were examined therein. The enquiry report was submitted by the Tehsildar on 13.3.2000 pursuant to which order dated 4.4.2000 was issued by the Sub-Divisional Officer dismissing the petitioner's husband from service. The petitioner's husband preferred an appeal against the impugned order before the Collector which was also dismissed by order dated 12.6.2000.
4. It is stated that subsequent thereto the petitioner's husband died on 14.6.2000 and, therefore, the petitioner filed a review application before respondent No.2 on 2.8.2000, which was also dismissed by him on 5.8.2000. Being aggrieved by the aforesaid orders, the petitioner has filed the present petition praying for the following reliefs:-
"(i) It is, therefore, prayed that the family pension be given to the petitioner.
(ii) It is also prayed that all the service benefits of the husband of the petitioner be also given to the petitioner treating her husband in service with retrospective effect with interest.
(iii) It is further prayed that compassionate appointment be also given to the son of the petitioner.
(iii) (a) It is, therefore, prayed that the order dated 4.4.2000 (Annexure A-6), dated 12.6.2000 (Annexure A-7) and 5.8.2000 (Annexure A-8) may kindly be quashed giving all benefits to the petitioner with retrospective effect.
(iv) Any other relief which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case may also kindly be granted in favour of the petitioner."
5. When the matter came up for hearing before the learned Single Judge on 8.4.2010, it was argued that, in view of the provisions of section 104 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as 'the Code'), the Competent Authority to appoint as well as dismiss the petitioner's husband, who was a Patwari, was the Collector and in such circumstances. in view of the Division Bench judgment of this Court in the case of Vishwanath Prasad v. Board of Revenue, 1964 JLJ SN 84 = 1964 MPLJ SN 38, and the recent decision of the Single Bench in the case of Vinod Kumar Khare v. State of M.P and others, 2008 RN 437 = 2008 (4) MPLJ 44, the impugned orders be quashed.
6. On the other hand the learned Govt. Advocate appearing for the respondent-State brought to the notice of the learned Single Judge another Division Bench judgment of this Court in the case of Mangilal v. State of M.P. and others, 1995 RN 67, and submitted that the Sub-Divisional Officer was competent to dismiss the petitioner's husband in view of the fact that the powers of the Collector under section 104 (2) of the Code had been conferred by the State upon the Sub-Divisional Officer by notification dated 9.10.1959, The learned counsel for the State also placed reliance on the provisions of Rule 8 of the Scheduled appended to the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as 'the Rules of 1966') which prescribed that the Disciplinary Authority of the Patwari would be the Sub-Divisional Officer who was als
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