ORDER
Per: Justice Vivek Agarwal This writ appeal is filed by the respondent no. 6 in W.P. No. 13338/2023 being aggrieved of the order passed by the learned Single Judge on 17th January, 2024 vide which the learned Single Judge has held that the Additional Collector could not have decided the appeal of an Anganwadi Sahayika, in as much as, the officer designated under the scheme is the Collector and not the Additional Collector and, therefore, has set aside the orders of the Additional Collector dated 4/11/2022 and that of the Divisional Commissioner dated 16/05/2023.
Brief facts of the present case are that the petitioner therein and the appellant herein were both candidates for selection to the post of 'Anganwadi
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Sahayika' and they had applied for the said post in response to the advertisement issued by Gram Panchayat Khejramaphi, Tehsil Jaisinagar, District Sagar. All the fourteen applications were received. The appointment was issued in favour of the appellant vide order dated 26/07/2022. The appellant had joined the services in pursuance to the said appointment order dated 26/07/2022 on that very date itself. Appellant had assailed the order of appointment of respondent no. 6 Roshni Patel before the Additional Collector, Sagar who had inturn vide order dated 4/11/2022 not only rejected the appeal but accepted the counter claim of respondent no. 6 cancelling the order of appointment made in favour of the appellant on 26/07/2022.
The Additional Collector held that respondent no. 6 be granted 60 marks in the final merit list dated 21/04/2022 on the basis of grading 'A' already given to her. Resultantly, respondent no. 6 moved to Serial No. 1 in the merit list and became entitled to be appointed on the post of Anganwadi Sahayika at Gram Pancahayat Khejramaphi because she was senior in age. The order of the Additional Collector dated 4/11/2022 was assailed before the Divisional Commissioner, Sagar Division Sagar but that appeal was dismissed vide order dated 16/05/2023.
It is submitted by Ms. Warija Ghildiyal, learned counsel for the appellant that the Additional Collector could have exercised the authority under the delegated legislation and the work distribution which was carried out by the Collector, District Sagar and the decision of the learned Single Judge on this aspect that the Additional Collector could not have exercised
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the functions of the Collector is improper. Thus, this writ appeal. In support, the judgment of the High Court of M.P. in Kaushal Prasad Kashyap Vs. State of M.P. and others 1999 (1) M.P.L.J. 455 is pressed into service to support the contention that even in the case of a statutory provision like Madhya Pradesh Panchayat Raj Adhiniyam, it is submitted that when in terms of the power of confirmation under Section 39(2) of the M.P. Panchayat Raj Adhiniyam, the State Government delegated it under Section 93 to the Collector, then contention that power of the State Government delegated to the Collector could not be exercised by the Additional Collector was rejected holding that the Collector would include an Additional Collector.
It is pointed out that in terms of the provisions contained in the M.P. Land Revenue Code, the Collector is the holder of office and according to Section 16 of the Madhya Pradesh Land Revenue Code, it deals with powers to appoint the Collector. Section 17 of the Code provides appointment of the Additional Collectors and sub-section (2) thereof provides that the Additional Collector shall exercise such power and discharge such duties conferred and imposed on a 'Collector' by or under this Code or under any other enactment for the time being in force.
Sub-section (3) of Section 17 provides that while so exercising powers under the Code or any other enactment, the Collector would include the Additional Collector as provided under Section 17(2) and 17(3) of the Code. While deciding this issue, the counter argument of the petitioner that the delegatee of a statutory power cannot further delegate the same and it is
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against the settled principle of administrative law. The Maxim "Delegatus non protest delegare" was pressed into service.
Reliance is also placed on the decision of the Supreme Court in the case of Barium Chemicals Ltd. and another Vs. Company Law Board and others AIR 1967 SC 295.
Shri D.K. Dixit, learned Senior counsel for respondent nos. 5 and 6 supports the order of the learned Single Judge and submits that the Collector is himself a delegatee cannot sub-delegate in favour of the Additional Collector.
The first issue which emerges herein is that the Maxim "Delegatus non protest delegare" is applicable when a discretion is conferred by a statute and the statute prima facie intends it to be exercised by the authority on which a statute has conferred it and by no other authority.
I n Marathwada University Vs. Seshrao Balwant Rao Chavan AIR 1989 SC 1582, it is held that when the Act prescribes a particular body or officer to exercise a power, it must be exercised by that body or officer and none else unless the Act by express words or necessary implication permits delegation in which event it may also be exercised by the delegatee if delegation is made in accordance with the terms of the Act but not otherwise. However, two facts are important. One scheme of appointment of Anganwadi Karyakarta is not a statutory scheme. It is governed by a Government circular.
The second aspect is that the Collector had nominated the Additional Collector to perform certain functions of the Collector in respect of certain
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(VIVEK AGARWAL)
JUDGE
(DEVNARAYAN MISHRA)
JUDGE
departments as is evident from the delegation/distribution of work carried out by the Collector.
Thus, once there is a distribution of work, then Additional Collector exercising the same authority as that of the Collector in terms of sub-section
(2) and sub-section (3) of Section 17 of the Madhya Pradesh Land Revenue Code, a mother statute from where the Collector derives his power, it cannot be said that authority was sub-delegated by the Collector in favour of the Additional Collector. It was work distribution between the Collector and the Additional Collector for the smooth functioning of the work and, therefore, when tested, then Maxim "Delegatus non protest delegare" being applicable only in case of a statutory power will not be applicable to the facts and circumstances of the present case.
Therefore, the order of the learned Single Judge dated 17/01/2024 passed in W.P. No. 13338/2023 cannot be given a seal of approval. It is hereby set aside.
In above terms, the appeal is allowed and disposed of. vy
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