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Madhya Pradesh High Court · body

2006 DIGILAW 629 (MP)

Maniram Yadav v. State of M. P.

2006-05-02

K.K.LAHOTI

body2006
ORDER 1. Petitioner has sought following reliefs: "(a) That the Hon'ble Court may kindly be pleaded to call for the relevant records from the respondent. (b) That the respondent be commanded to frame statutory recruitment rules regarding appointments and service conditions of Panchayat Karmis and Secretaries in the Gram Panchayats in view of the powers and duties conferred on them vide Annexure P-3. (c) That the respondent be commanded to regulate and reassess the appointment of Panchayat Karmis and Secretaries already made in view of the so framed statutory rules and not to regular such appointment unless and until they conform to the rules to be so framed. (d) Costs of the petition be awarded; and (e) Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case may kindly be awarded," Case of the petitioner is that the State Government decided to appoint Panchayat Karmis and Secretaries in various Gram Panchayats after coming into force of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, The appointments of the Panchayat Karmis and Secretaries are regulated by the instructions and till date no statutory rules have been framed by the State Government. It is prayed that a mandamus be issued to the respondent directing it to make statutory recruitment rules in respect' of the appointment and service conditions of the Panchayat Karmis and Secretaries in the Gram Panchayats. 2. Learned counsel for State submits that for framing of the rules, no mandamus can be issued. Shri Jain placed his reliance to the apex Court judgment in Supreme Court Employees Welfare Association v. Union of India [( 1989) 4 SCC 187] and submitted that aforesaid direction may not be issued in the matter. 3. Learned counsel for petitioner submits that after enactment of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, every Panchayat requires a Panchayat Karmi and Secretary. When a large number of Panchayat Karmis and Secretaries are to be appointed, their appointment and service conditions ought to have been regulated by framing of the rules. It is submitted by the petitioner that in case such direction cannot be issued, petitioner may be permitted to submit a representation in this regard to the State Government for framing the aforesaid rules. In Supreme Court Employees Welfare Association (supra) the apex Court considering the question held thus: "51. It is submitted by the petitioner that in case such direction cannot be issued, petitioner may be permitted to submit a representation in this regard to the State Government for framing the aforesaid rules. In Supreme Court Employees Welfare Association (supra) the apex Court considering the question held thus: "51. There can he no doubt that no Court can direct a Legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a Legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority." Similar view has been taken by the apex Court in State of J & K v. A.R. Zakki [AIR 1992 SC 15461 wherein the apex Court considering the question held thus: "10. In our opinion there is considerable merit in this submission. A writ of mandamus cannot be issued to the Legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Section 110 of the J & K, Constitution, which is on the same lines as Article 234 of the Constitution of India, vests in the Governor, the power to make rules for appointments of persons other than the District Judges to the Judicial Service of the State of J & K and for framing of such rules, the Governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court. 15. The aforesaid observations leave no room for doubt that the purport of the direction that has been given by the High Court is that the amendments that have been recommended by the High Court should be incorporated in the rules. In our opinion, such a direction was impermissible and cannot be upheld." 4. 15. The aforesaid observations leave no room for doubt that the purport of the direction that has been given by the High Court is that the amendments that have been recommended by the High Court should be incorporated in the rules. In our opinion, such a direction was impermissible and cannot be upheld." 4. In the aforesaid both the cases, the apex Court has considered the question and held that the Court cannot issue writ directing the Legislature or its sub-ordinate legislative authority to enact a particular law or rule, nor a writ of mandamus can be issued to the State to frame any such rule governing the procedure for recruitment and service conditions of the aforesaid employees. In view of the aforesaid settled position, prayer made in this petition cannot be allowed. Accordingly, this petition is dismissed. 5. While dismissing the petition, it is observed that in case petitioner is advised to submit a representation to the State Government drawing attention of the State in respect of the difficulties being faced in respect of recruitment and service conditions of the Panchayat Karmis and the Secretaries, petitioner may submit his representation to the State Government in accordance with law and the State Government on filing of the representation shall be free to consider it in accordance with law. No order as to costs.