1. This is a petition under Art, 226 of the Constitution of India.
2. As the post of Patel fell vacantIn village Lukwasa, the Collector Shivpuri appointed Naib Tehsildar Kolarasas Inquiring Officer under Rule 4 of theRules regarding Appointments, Remuneration. Duties, Removal & Punishmentof Patel (hereinafter referred to as the'Rules').
3. The Inquiring Officer invited applications for the post of Patel, The petitioner, respondents Nos. 2 and 3 and four other persons submitted their applications to the Inquiring Officer. Out of them only the petitioner and respondents Nos. 2 and 3 were held to be eligible for the post by the Inquiring Officer. Other applications were rejected. The Inquiring Officer proceeded to hold the election for the post of Patel in accordance with Rules 8 and 9 of the Rules. In the meantime, the petitioner moved the Collector to revise the order of the Inquiring Officer in so far as it declared respondents Nos. 2 and 3 to be eligible for the post. The Collector held respondents Nos. 2 and 3 to be ineligible for the post of Patel and appointed the petitioner on the said post vide order dated 2-12-1968 (Annexure 'B') as he alone was found to be eligible for the post. Being aggrieved by this order respondent No. 2 filed a revision petition before the Board of Revenue vide Annexure 'A'- The Board of Revenue set aside the order of the Col-lector. It held that the petitioner and respondent No. 2 were both eligible for the post and directed the Collector to hold an election in accordance with the Rules (vide Annexure 'D'). This petition is directed against the said order and the petitioner wants that it should be quashed.
4. The non-petitioners have not filed their returns in this case.
5. The validity of the order of the Board has been assailed on two grounds. In the first place, it was urged by Shri Patankar, learned counsel for the petitioner, that the Inquiring Officer does not function as a Revenue Officer under the Rules and that his decision regarding eligibility does not amount to an order under the Rules but is a mere opinion which is submitted to the Collector for his consideration. It is, therefore, urged that no revision lies against the order of the Inquiring Officer and the order of the Collector setting aside the decision of the Inquiring Officer regarding eligibility was not an order passed in revision. The Board could not, therefore, entertain a revision against the said order. We are, however, not impressed by this contention. Rule 4 of the Rules reads as under:---
'The Tahsildar or any other Revenue Officer directed by the Collector to do so (hereinafter referred as the 'Enquiring Officer') shall issue in accordance with the procedure laid down in Rule 17 in the first Schedule to the Code, a proclamation in the village, inviting application by a fixed date which shall not be less than 45 days from the date of the proclamation, for the post and fixing the date on which and the place where an enquiry into the applications would be made.'
It is clear from the language of the said Rule that a Revenue Officer alone is competent to function as an 'Enquiring Officer'. The mere fact that for the purposes of the Rules he is described as Enquiring Officer would not alter his capacity as a Revenue Officer and while acting in this capacity he would be a revenue officer within the meaning of Section 44 and Section 50 of the M. P. Land Revenue Code. 1959, (hereinafter referred to as the Code). The order passed by the Enquiring Officer under the Rules would therefore, be open to appeal or revision under the said sections.
6. We are also not impressed by the contention that the decision of the Enquiring Officer rejecting the application of a candidate or holding a candidate to be eligible for the post is a mere opinion for the consideration ofthe Collector and not an order under the Rules. Rule 5 lays down that the Enquiring Officer shall record statements after making such further inquiry as may be considered necessary by him for purposes of ascertaining the eligibility of each applicant for the post of the Patel. Under Rule 6 the Enquiring Officer mav reject an application, if in his opinion the applicant is disqualified for the post. Rule 6 further enjoins that the Enquiring Officer shall record his reasons for his opinion and inform the applicant accordingly. It is further pertinent to note that after determining the eligibility of the candidate the Enquiring Officer is entitled to proceed with the election of the candidates if the number of applicants who are found eligible for the office of Patel is more than the number of vacancies, vide Rules 8 and 9. It is only - after the election is over that the Enquiring Officer has to forward the papers to the Collector under Rule 10 for making the appointment. Rule 11 requires that the Collector shall, as far as may be, select for appointment as Patel the applicant securing largest number of votes. Thus under Rule 11 the Collector is not concerned with the question of eligibility of a candidate. This means that the question of eligibility is decided by the Enquiring Officer and his decision is final unless It is set aside in appeal or revision.
7. No doubt under Rule 7 it Is open to the Collector to consider the question of eligibility suo motu where the number of candidates found fit by the Enquiring Officer does exceed the number of vacancies to be filled. But this does not mean that the decision of the Enquiring Officer regarding the eligibility is merely a recommendation to the Collector and not an order in itself. If the intention of the Rules had been as suggested, the scheme of the Rules would have been different. In that case the Rules would have provided that on receiving applications of the candidates the Enquiring Officer shall submit papers to the Collector with his recommendation regarding eligibility and the Collector alone would decide the question of eligibility and reject the applications of the persons found to be qualified. But that is not so as pointed out above. We, therefore, hold that the order of the Enquiring Officer regarding eligibility of the candidates is an order of a Revenue Officer under the Rules and as such it is open to appeal and revision. The order of the Board is not. therefore, open to question on this ground.
8. The second ground on which the order of the Board has been at-tacked is that the Board was not competent to set aside the order of the Collector appointing the petitioner as Patel in revision (vide Annexure 'B'). Under Clause (e) of Sub-section (1) of Section 44 of the Code an appeal lies to the Commissioner from the original order of the Collector under the Code and the Rules made thereunder. There can be no doubt that the order of the Collector appointing the petitioner as a Patel was an original order under the Code and the Rules because the power of appointment can be exercised only by the Collector. Under Section 222 the power of appointment of Patel has been vested in the Collector. Rule 3 of the Rules also lays down that the Collector shall appoint one or more qualified persons as Patel or Patels as the case may be in accordance with the Rules. Thus the order appointing the petitioner as a Patel was an original order of the Collector open to appeal under Section 44 (1) (e) of the Code. The Board was, therefore, not competent to entertain any revision petition against the said order in view of Proviso to Section 50 of the Code which lays down that no application for revision shall be entertained against an order appealable under the Code.
9. The learned counsel for thenon-petitioner No. 2 urged that sincethe order of appointment was passedby the Collector in exercise of his revisional powers as would be apparentfrom the order itself the order of theCollector appointing the petitioner as aPatel cannot be treated as an originalorder and it was, therefore, open torevision by the Board. It appears fromparagraph 3 of the order of the Board(vide Annexure 'D') that it also proceeded upon this view. But we are unable toaccept this view for the simple reasonthat the Enquiring Officer not beingcompetent to make an appointment theorder of appointment cannot be deemed to have been made in the exercise ofthe revisional powers. From Section 222 ofthe Code as well as the Rules it is clearthat the Collector alone is competent tomake an order of appointment. The Enquiring Officer merely performs certainfunctions which are preliminary to theappointment in order to enable theCollector to make an appointment. Anyerror in the exercise of these functions can be rectified in appeal or revision only before an actual appointment is made. Once an order of appointment is passed by the Collectorall orders passed in relation to the preliminary functions merge in the orderof appointment and the only courseopen to the party aggrieved by the order of appointment is to file an appeal against the said order.
10. The order passed by the Collector was a composite order whereby the Collector revised the order of the Enquiring Officer regarding eligibility of non-petitioners Nos. 2 and 3 and then proceeded to appoint the petitioner as he alone was found to be eligible for the post. The Collector first decided the question of eligibility on the application of the petitioner and then proceeded to make an order of appointment in accordance with his decision regarding eligibility. If the order of appointment had not been made it would have been open to the non-petitioner No. 2 to go up in revision before the Board, but once the order of appointment was passed the order could be challenged only by way of an appeal and not by a revision.
11. It was also urged on behalf of the non-petitioner No. 2 that the Collector did not act according to the Rules but that is immaterial, because the order of appointment will be appealable even if he did not act strictly in accordance with the Rules.
12. Another point raised on behalf of the non-petitioner No. 2 was that the Collector was not competent to entertain a revision petition against the order of the Enquiring Officer because the order was appealable and the Enquiring Officer being a Naib Tahsildar the appeal lay to the S. D. O. and not to the Collector. We need not, however, go into this question because it is immaterial. Once the order of appointment was passed by the Collector whether rightly or wrongly the only remedy open to the non-petitioner was to file an appeal before the Commissioner. The Board was not competent to entertain a revision petition against the said order. As the Board acted without jurisdiction in setting aside the order of appointment in exercise of its revisional powers by entertaining a revision petition against the order of appointment passed by the Collector the order is liable to be quashed.
13. The petition is, therefore, allowed and the order of the Board of Revenue is hereby quashed. The non-petitioner No. 2 shall pay the costs of the petitioner. Counsel fee Rs. 50/- The non-petitioners shall bear their own costs.