The appointment of a Kotwar is to be made as per Rule 4 of the 'Rules regarding appointment, punishment and removal of Kotwars and their duties' framed under Section 230 of the M.P. Land Revenue Code, 1959. Preference may be given to the near relative of the ex-Kotwar only when other things are equal.

JUDGMENT :

Vijay Kumar Shukla, J.

Hearing convened through video conferencing mode.

1. The present intra-court appeal has been preferred under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth ko Appeal) Adhiniyam, 2005, being aggrieved by the order dated 5-12-2019 passed by the learned Single Judge in WP-23428-2019 [Rameshwar Prasad vs. State of M.P. & ors.], whereby the learned Single Judge has allowed the writ petition filed by the respondent No. 4/writ-petitioner and set aside the orders passed by the Sub-Divisional Officer (Revenue), Pawai District, Panna and Additional Commissioner, Sagar Division, Sagar.

2. The respondent No. 4/writ-petitioner filed a petition under Article 226 of the Constitution of India, assailing the order dated 24-01-2020 (Annexure-P/6) passed by the Sub-Divisional Officer (Revenue) and the order dated 21-10-2019 (Annexure-P/15) passed by the Additional Commissioner, Sagar Division, Sagar. The dispute between the parties is in respect of appointment to the post of Kotwar for Village, Deori Sarkar, District Panna. Initially, the Gram Sabha passed a resolution recommending the name of the respondent No. 4/writ-petitioner for appointment to the post of Kotwar at the respective village. In pursuance to the recommendation made by the Gram Sabha an order of appointment for the post of Kotwar was issued by the Tehsildar, who is the competent authority to make the appointment on the said post. However, the said appointment was assailed by the present appellant by preferring an appeal before the Sub-Divisional Officer claiming himself to be eligible to be appointed on the post of Kotwar, because he claimed to be a relative of an ex-Kotwar.

3. The appellate authority by order dated 24-01-2019 called for the record, examined the same and observed in its order that after inviting applications for the post of Kotwar, the Gram Sabha has not made a comparative chart indicating character of the candidates, their capability, experience and the duties of their families, if any, performed on the post of Kotwar. It is also observed by the appellate authority that the said mandatory requirements have not been fulfilled, as the applicant was not provided any opportunity for producing document. It is further observed that appointment to the post of Kotwar has to be made as per Rule 4 of the "Rules regarding appointment, punishment and removal of Kotwars and their duties" and while appointing the Kotwar, the authority has to take note of the relation of the said candidate with the ex-Kotwar. It is found by the appellate authority that the appointing authority gave the appointment to the writ-petitioner without considering his eligibility and as such, the appointment was held to be illegal and was set aside. Not only this, but it is further directed by the appellate authority that the appointment be made in favour of the present appellant/respondent No. 4.

4. Against the said order, an appeal was preferred by the respondent No. 4, but the same was rejected by the Additional Commissioner, Sagar Division, Sagar. Being aggrieved by the aforesaid orders the writ petition was filed by the respondent No. 4/writ-petitioner under Article 226 of the Constitution of India, which has been allowed by the impugned order.

5. It was put-forth before the learned Single Judge that the orders passed by the respondents-authorities are illegal, as they have not properly appreciated the provisions pertaining to appointment on the post of Kotwar. It was further submitted that on the basis of erroneous presumption that the respondent No. 4/writ-petitioner is relative of an ex-Kotwar and, therefore, he ought to be given preference and the appointment of the writ-petitioner was wrongly cancelled by the respondents-authorities.

6. Per contra, it was submitted on behalf of the present appellant that on the basis of the documents submitted by him, showing that he is relative of an ex-Kotwar, he was required to be given preference and, ther