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Madhya Pradesh High Court · body

2008 DIGILAW 1191 (MP)

Lallu Kol v. State of M. P.

2008-09-25

A.M.NAIK

body2008
ORDER 1. Petitioner belonging to Scheduled Tribe category is stated to be permanent resident of Gram Panchayat Amiliya whereas respondent No.4 is stated to be a practising Advocate belonging to general category. Applications were made for appointment on the post of Panchayat Karmi of Gram Panchayat Amiliya by various candidates including the petitioner and respondent No.4. 2. Case of the petitioner is that according to the Panchayat Karmi Yojna he ought to have been preferred since he' belong to Scheduled Tribe category. Copy of Panchyat Karmi Yojna is on record as Annexure P-4. Guidelines were provided for appointment on the post of Panchayat Karmi vide circular dated 27.1.2006 contained in Annexure P-5. Gram Panchayat, Amiliya was asked to make appointment on the post of Panchayat Karmi within 30 days vide letter dated 10.7.2007. Since, the appointment was not made within 30 days, Gram Panchayat Amiliya became functus officio and the power to appoint Panchayat Karmi was only with Prescribed Suthority after expiry of 30 days. This apart, it is stated that respondent No.4 is real brother of Rajendra Prasad Tiwari, Panch a of Ward No. 14 of village Amiliya. In view of the aforesaid, it is stated that the appointment of respondent No.4 on the post of Panchayat Karmi vide resolution dated 21.8.2007 is illegal and is liable to be quashed. Petitioner was kept in the waiting list, though he was entitled to be appointed on the post of Panchayat Karmi. Respondent No.4 was thereafter notified as Panchayat Secretary vide Annexure P-2 dated 17.9.2007 which, too, is liable to be quashed for the aforesaid reasons. Petitioner had preferred an appeal against the resolution before the Collector, Satna which was got dismissed as not pressed on 8.1.2007. 3. Respondent No.4 submitted his reply stating therein that he has been rightly appointed as Panchayat Karmi and notified as Panchayat Secretary. Respondent No.4 was the most meritorious candidate amongst the applicants with 74% marks in the High School Certificate Examination whereas the petitioner was having 59.6% marks in the same examination. As regards allegation about Rajendra Prasad Tiwari, the elder brother of respondent No.4, it is stated that he was Pancha from Ward No. 14 but had tendered his resignation from the post on 30.7.2007. As regards allegation about Rajendra Prasad Tiwari, the elder brother of respondent No.4, it is stated that he was Pancha from Ward No. 14 but had tendered his resignation from the post on 30.7.2007. He did not participate in any meeting after tendering the resignation including the meeting on 21.8.2007 in which the petitioner was selected and appointed on the post of Panchayat Karmi. Respondents No. 1 and 2 supported respondent No.4 by submitting a separate return. 4. Gram Panchayat, Amiliya submitted its return stating therein that the impugned resolution dated 21.8.2007 was passed by keeping Sarpanch and other Panchas in dark They were informed that the agenda of the meeting for 21.8.2007 was for development matters and under the garb of wrong notion and taking advantage of the illiteracy of the Panchas, the impugned resolution was passed at the instance of Rajendra Prasad Tiwari. Signatures of Sarpanch and other panchas were obtained fraudulently. Representation to this effect was made to the Collector, Satna and other higher authorities vide Annexure R-3-A. Without considering the representation, respondent No.4 has been notified as Panchayat Secretary vide Annexure P-2 dated 17.9.2007. As regards resignation of Rajendra Prasad Tiwari, it is stated that the same was received in the office of Sarpanch on 24.9.2007 which has not been placed and considered in the meeting of Gram Panchayat. Thus, resignation of Rajendra Prasad Tiwari has not been accpeted till date and he is still continuing as Pancha of Gram Panchayat Amiliya. 5. Respondent No.3 has made available the record of Gram Panchayat for perusal. 6. Shri Harvinder Singh, learned counsel for the petitioner, Shri Vinod Mehta, Government Advocate for respondents No.1 and 2, Shri Sanjay Tamrakar, learned counsel for respondent No.3 and Shri A.G. Dhande, learned senior counsel for respondent No.4 made their submissions at length which have been duly considered in the subsequent paragraphs. 7. Contention of Shri Harvinder Singh, learned counsel is that the petitioner being a candidate belonging to Scheduled Tribe category is to be preferred in comparison to respondent No.4 in view of sub-clause 3.4 of Clause 3 of Panchayat Karmi Yojna which is on record as Annexure P-4. Clause 3 of Annexure P-4 lays down qualifications for the post of Panchayat Karmi. Sub-clause 3.4 provides preference to a candidate belonging to Scheduled Caste, Scheduled Tribe, OBC and Female candidate. Clause 3 of Annexure P-4 lays down qualifications for the post of Panchayat Karmi. Sub-clause 3.4 provides preference to a candidate belonging to Scheduled Caste, Scheduled Tribe, OBC and Female candidate. It may be seen that under Panchayat Karmi Yojna, there is only one post for Panchayat Karmi in every Gram Panchayat. In the case of Indra Sawhney v. Union of India and others [1992 Supp. (3) SCC 217] learned apex Court has clearly held that there cannot be reservation in case of a single post. Accordingly, it is held that sub-clause 3.4 does not tantamount to reservation in favour of a candidate belonging to Scheduled Caste, Scheduled Tribe, OBC and Female category. It does not mean that a candidate belonging to any of the aforesaid category has to be preferred irrespective of merits of the candidates. It has been clearly provided in the circular dated 13.8.2007 (Annexure R-l) that appointment on the post of Panchayat Karmi was to be made on the basis of merit. Accordingly, it is observed that sub-clause 3.4 of Clause 3 of Annexure P-4 is to be construed in a manner so as to mean that if candidates of different categories are equal in merits, a candidate belonging to Scheduled Caste, Scheduled Tribe, OBC and Female category is to be preferred for the post ofPanchayat Karmi. I am fortified in my this view by the Division Bench decision of this Court dated 3.12.2007 passed in W.P. No. 1819/2007, Krishna Yadav v. State of M.P. and others wherein it has been held that when the candidate securing highest marks in the qualifying examination is appointed on the post of Panchayat Karmi, the concept of preference is not attracted. In the present case respondent No.4 has secured 74% marks in the High School Certificate Examination whereas petitioner has secured merely 59.6% marks in the same examination. Obviously, respondent No.4 is more meritorious than the petitioner. From the resolution in question it is apparent that respondent No.4 was the most meritorious candidate amongst the applicants. Thus, his appointment is not found in contravention of Panchayat Karmi Yojna or the various circulars issued by the State Government from time to time. 8. Next contention of the learned counsel for the petitioner is that respondent No.4 is brother of Rajendra Prasad Tiwari who was a Pancha from Ward No. 14 of Gram Panchayat, Amiliya. Thus, his appointment is not found in contravention of Panchayat Karmi Yojna or the various circulars issued by the State Government from time to time. 8. Next contention of the learned counsel for the petitioner is that respondent No.4 is brother of Rajendra Prasad Tiwari who was a Pancha from Ward No. 14 of Gram Panchayat, Amiliya. Resignation of Rajendra Prasad Tiwari was not accepted in accordance with the provision of M.P. Panchayat (Resignation By Office Bearer) Rules, 1995 (hereinafter referred to as "Resignation Rules" for brevity). Accordingly, appointment of respondent No.4 on the post of Panchayat Karmi is bad in law being in contravention of section 69 of M.P. Panchayat Raj Evam Gram Swaraj dhiniyam, 1993. Sub-section (1) of section 69 empowers the State Government or the prescribed authority to appoint a Secretary for a Gram Panchayat. Second proviso to sub-section (1) prohibits a person from holding charge of Panchayat Secretary, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat. Subsection (I) of section 69 is reproduced below for convenience: "(1) The State Government or the prescribed authority may appoint a Secretary for a Gram Panchayat or group of two or more Gram Panchayats : Provided that the person holding the charge of a Secretary of Gram Panchayat immediately before the commencement of this Act shall continue to function as such till a Secretary is appointed in accordance with this section. Provided further that a person shall not hold charge of a Secretary of Gram Panchayat, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat. Explanation. -- for the purpose of this sub-section the expression "relative" shall mean father, mother, brother, sister, husband, wife, son, daughter, father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law. 9. A bare perusal of the aforesaid provision makes it clear that there is no embargo on the appointment of a person on the post of Panchayat Karmi or notification in his favour as Panchayat Secretary. It merely prohibits a person from holding a charge of Panchayat Secretary if he happens to be a relative of Pancha or Sarpanch of the same Gram Panchayat. Thus, the appointment of respondent No.4 on the post of Panchayat Karmi on account of being the most meritorious candidate is not affected merely on account of his brother being the Pancha. It merely prohibits a person from holding a charge of Panchayat Secretary if he happens to be a relative of Pancha or Sarpanch of the same Gram Panchayat. Thus, the appointment of respondent No.4 on the post of Panchayat Karmi on account of being the most meritorious candidate is not affected merely on account of his brother being the Pancha. Rule 3 of the Resignation Rules provides for giving notice as follows: 3. Man1ler of giving notice. -- (1) Any member who desires to resign his office shall give notice, thereof in writing in Form 'A' duly signed by him to the Sarpanch or president as the case may be either in person, or through his representative authorised by him in writing in this behalf, a copy of the said notice shall also be sent to the Secretary or Chief Executive Officer, as the case may be. (2) On receiving the notice under sub-rule (1) the Secretary or Chief Executive Officer as the case may be, shall record on the notice the date on which and the time at which the notice was given to him and give a receipt thereof in Form 'B'." 10. Rule 4 makes provisions for acceptance of resignation which is as follows: 4. Acceptance of Resignation. -- (1) On receipt of the notice under Rule 3, the Secretary or Chief Executive Officer shall forward such notice immediately to the District Deputy Director, Panchayat and Social Welfare and the Collector. (2) The notice of resignation given by the member shall be considered by the Panchayat at its next meeting. Notice of the meeting shall also be given to the member who has submitted the resignation. (3) The Panchayat shall in its meeting may ascertain from the member concerned whether he desires to withdraw his resignation and if the member desires to withdraw his resignation, he shall give in writing to that effect in Form "C". (4) If the member concerned furnishes the statement in Form 'C' his resignation shall become infructuous. If the member does not withdraw his resignation, then his resignation shall be accepted by the Panchayat. (5) The member whose resignation has been accepted shall cease to be a member immediately after the termination of the said meeting. (4) If the member concerned furnishes the statement in Form 'C' his resignation shall become infructuous. If the member does not withdraw his resignation, then his resignation shall be accepted by the Panchayat. (5) The member whose resignation has been accepted shall cease to be a member immediately after the termination of the said meeting. (6) If the member who has submitted his resignation, does not attend the meeting called for considering his resignation after valid service of the notice on him and without sufficient reasons, his resignation shall be deemed to have been accepted after termination of such meeting and he shall cease to be a member of the panchayat. If any member does not attend the meeting due to sufficient reasons his resignation shall be considered in the next meeting of the Panchayat. 11. By virtue of sub-rule (5) a person would cease to be a pancha immediately after termination of meeting wherein the resignation is accepted. In the present case there is no iota on record to show that the resignation has been accepted. Similarly, there is no material on record to show that Rajendra Prasad Tiwari had participated in the proceedings of the resolution dated 21.8.2007. Thus, the appointment of respondent No.4 on the post of Panchayat Karmi as well as notification in his favour as Panchayat Secretary are not affected on account of non-acceptance of resignation, moreso, which is not shown to have been withdrawn by Rajendra Prasad Tiwari. Fact remains in the light of the aforesaid is that Rajendra Prasad Tiwari has not ceased to be a panch a on account of non-acceptance of his resignation till date. The necessary consequence would be that the respondent No.4 shall not be entitled to hold the charge of Secretary of Gram Panchayat, Amiliya until acceptance of resignation of Rajendra Prasad Tiwari. Sarpanch of Gram Panchayat, Amiliya has admitted in her return to have received the resignation of Rajendra Prasad Tiwari from the post of pancha. By virtue of sub-rule (2) of Rule 4 0 Resignation Rules, the notice of resignation contained in Annexure R-3B was liable to be considered by the Gram Panchayat, Amiliya in its next meeting. From perusal of the record of Gram Panchayat, Amiliya it seems that no steps in accordance with Rule 4 were taken by Gram Panchayat, Amiliya. By virtue of sub-rule (2) of Rule 4 0 Resignation Rules, the notice of resignation contained in Annexure R-3B was liable to be considered by the Gram Panchayat, Amiliya in its next meeting. From perusal of the record of Gram Panchayat, Amiliya it seems that no steps in accordance with Rule 4 were taken by Gram Panchayat, Amiliya. Respondent No.4 cannot be held guilty for inaction on the part of respondent No. 3 and cannot be made to suffer on account of the same. Accordingly, it is held that appointment of respondent No.4 on the post of Panchayat Karmi and consequent notification in his favour as Panchayat Secretary are not vitiated on account of non-acceptance of the resignation. 12. Next contention of learned counsel for the petitioner is that the Gram Panchayat, Amiliya was asked to make appointment vide Annexure P-6 dated 10.7.2007 within a period of 30 days and accordingly, the Gram Panchayat ceased to have power to make appointment on the post of Panchayat Karmi after expiry of 30 days. This submission is misconceived because under Panchayat Karmi Yojna a Gram Panchayat is empowered to make appointment on the post of Panchayat Karmi. Under" sub-section (1) of section 86 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 State Government or the prescribed authority may direct a Gram Panchayat to perform any duty imposed upon it. Thus, the power of appointment avaiiable to the Gram Panchayat cannot be qualified for a period of 30 days and the same, if exercised in due manner even thereafter cannot be treated as having been vitiated on this ground. 13. In the result, the writ petition is dismissed with an observation that respondent No.4 shall not be permitted to hold the charge of Secretary of Gram Panchayat, Amiliya for a period of one month during which respondent No.3 shall hold the meeting of Gram Panchayat for consideration of the resignation of Rajendra Prasad Tiwari Needless to say that if the resignation is withdrawn by Rajendra Prasad Tiwari, or not accepted on valid ground, charge of Secretary of Gram Panchayat, Amiliya shall not be permitted to be held by respondent No.4.No order as to costs. Harvinder Singh for petitioner; Vinod Mehta, Government Advocate for respondents No. 1 & 2; Sanjay Tamrakar for respondent No.3; A.G.