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2006 DIGILAW 10 (HP)

SURINDER KUMAR v. STATE OF H. P.

2006-01-06

M.R.VERMA, VIJAY PAL SINGH

body2006
JUDGEMENT M.R. Verma, J. (Retd.), Chairman - The following common legal question arises for determination in all these three original applications:- 1. Whether these applications are maintainable before this Tribunal despite the fact that the applicants have not preferred the appeals against the orders by which they feel aggrieved. 2. In view of the above, the arguments were heard in all these original applications on the aforesaid question and such question is being disposed of by this common order. 3. In O.A. No. 3409/1999 the material and relevant facts are that the applicants was appointed as Gram Panchayat Sahayak as per the Scheme notified by the State Government but by an order his services as Gram Panchayat Sahayak stood terminated. Therefore, the applicant has claimed the relief that such oral termination be set aside and the respondents be restrained from holing fresh interview to appoint any other person as Gram Panchayat Assistant against the post held by the applicant. 4. In O.A. No. 503/2001, the applicant Kapoor Nath was appointed as Panchayat Sahayak pursuant to resolution dated 14.1.2000 on contract basis. However, vide resolutions dated 21.2.2000 and 5.3.2001 passed by the concerned Gram Panchayat to appoint fresh Panchayat Sahayak in place of the applicant is to be appointed. The applicant has claimed the relief that such resolutions may be declared null and void and the applicant should be allowed to continue to work as Panchayat Sahayak and should not be replaced by appointing any fresh appointee pursuant to the said resolution. 5. The applicant in O.A. No. 628/2001 was appointed as Panchayat Sahayak as per the aforesaid policy on contract basis. His services, however, are sought to be terminated on the strength of resolution Annexure P-9 on the contract that the appointment of the applicant was irregular and illegal. He has sought the relief that the respondents be restrained from terminating the services of the applicant as Gram Panchayat Sahayak and their proposed action in this regard may be quashed and set aside. 6. He has sought the relief that the respondents be restrained from terminating the services of the applicant as Gram Panchayat Sahayak and their proposed action in this regard may be quashed and set aside. 6. In all these three original applications a preliminary objection regarding maintainability was raised by the respondents to the effect that under the Himachal Pradesh Panchayati Raj Act, the Rules framed there under and in the Scheme regarding appointment of Panchayat Sahayak in the Gram Panchayat provisions to file appeal by the aggrieved person have been made and the applicants herein, without availing the remedy of appeals have filed these original applications which deserve to be dismissed in view of the provisions of Section 20 of the Administrative Tribunals Act. Hence the above questions. 7. Section 135 of the Panchayati Raj Act empowers the Panchayat to appoint such officers/servants as it considers necessary for the efficient discharge of its duties which the approval of the prescribed authority. The qualifications method of recruitment, salary, leave, allowances and other conditions of service of so appointed officers/servants shall be such as may be prescribed by virtue of the provisions of Section 145. The prescribed authority has the power to suspend office bearers of the Panchayat in certain circumstances and the State Government or the prescribed authority has the powers of removal of the office bearers of the Panchayat by virtue of the provisions of Section 146 of the Act. Section 148 of the Panchayati Raj Act provides for appeal and revision against the order or proceedings of the Panchayat and other authority inter alia regarding aforesaid matters to the prescribed authorities. 8. Rule 137 of the Himachal Pradesh Panchayati Raj (General) Rules, 197 provides the conditions under which a Panchayat may be resolution propose appointment of its employees. The provisions contained in Rule 138 to 142 deal with the powers to suspend execution of the orders etc. of a Panchayat, the prescribed authorities for directing Panchayat to execute certain works in certain cases, liabilities of office bearers for loss/misappropriation and suspension etc. Rule 143 provides for appeals and revisions. Under this Rule an appeal will lie against order and proceedings of the Gram Panchayat to S.D.O. (Civil) and revision will lie to the Deputy Commissioner. 9. of a Panchayat, the prescribed authorities for directing Panchayat to execute certain works in certain cases, liabilities of office bearers for loss/misappropriation and suspension etc. Rule 143 provides for appeals and revisions. Under this Rule an appeal will lie against order and proceedings of the Gram Panchayat to S.D.O. (Civil) and revision will lie to the Deputy Commissioner. 9. The Governor of Himachal Pradesh in super session of earlier Scheme/notification introduced a Scheme of appointment of Panchayat Sahayak in Gram Panchayat vide notification dated August 20, 2001 which exclusively deal with the appointment of Gram Panchayat Sahayak and by virtue of Clause VIII (Administrative Control) of such Scheme the order regarding termination of Panchayat Sahayak passed by the Panchayat will be appealable by virtue of the provisions of Rule 137 of the aforesaid General Rules. 10. It is evident from the aforesaid statutory provisions and the provisions made under the Scheme that any order or proceeding of a Gram Panchayat due appointment of its office bearer can be called in question by way of appeal and revision. Thus, the alternative remedy was available to the applicants to avail the impugned orders/proceedings/resolution which they have not admittedly availed of. 11. Section 20 of the Administrative Tribunal Act, 1985 provides that the Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of his grievances. The expression ordinarily has been used in Section 20 which gives judicial discretion to the Tribunal to entertain the application under Section 19 even where the applicant has failed to avail of all the remedies available to him under the relevant laws. However, such a discretion cannot be lightly exercised in favour of the applicant unless strong grounds and eminent danger of justice is shown to exist which has not been done in these cases. Therefore, the discretion in these cases cannot be exercised in favour of the applicant by dispensing with the requirement of the applicants having availed of the statue remedies available to them before filing these original application Therefore, these original applications cannot be admitted for hear; The above question is accordingly answered. 12. As a result we refuse to admit these original applications an reject them. 12. As a result we refuse to admit these original applications an reject them. It is, however, clarified that nothing contained in this order shall be construed to be an expression of opinion on the merits of the respective cases of the applicants.