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Madhya Pradesh High Court · body

2009 DIGILAW 228 (MP)

LALLU KOL v. STATE OF M P

2009-02-16

R.S.GARG, U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE appellant has directed this appeal under Section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeet) Ko Appeal), adhiniyam 2005 being aggrieved by the order dated 25. 9. 08 passed by learned single Bench in W. P. No. 14999/07 dismissing his writ petition filed under Article 226 of the Constitution of India. ( 2. ) THE facts giving rise to this appeal in short are that the appellant, herein approached to this court with the aforesaid Writ Petition contending that he being permanent resident of Gram Panchyat Amiliyia, Tahsil Maihar, District Satna is belonging to the Scheduled Tribe Category while the respondent no. 4 being a practicing Lawyer of the Civil Court, Maihar belongs to general category. On inviting applications by the respondent no. 3 the Gram Panchyat Amilyia for appointment of Panchyat Karmi under the Scheme of Panchayat Karmi Yojana, hereinafter referred as "the Scheme", twelve candidates including the appellant and respondent no. 4 submitted their respective applications. According to the aforesaid Scheme the requisite qualifications for the aforesaid appointment are prescribed that a candidate should be passed 10th standard in the 10+2 System with the minimum age of 18 years. He must be local resident of such Gram panchyat and having sufficient time to carry out the prescribed work and while making selection amongst the candidates, the preference will be given to the candidates belonging to S. C. , S. T. O. B. C. , and Woman category. As per the provision of the aforesaid Scheme the respondent no. 3 Gram Panchyat in its meeting dated 28. 1. 07 passed a resolution (Annexure P-1 with the writ petition)whereby the name of respondent no. 4 was resolved to be appointed as Panchyat karmi. In pursuance of it, the respondent no. 2 - Collector by virtue of Section 69 (1) of the Madhya Pradesh Panchayat Raj and Gram Swaraj Adhiniyam 1993, in short "the Adhiniyam", notified the name of the respondent no. 4 as a Secretary of such Gram Panchyat, vide order dated 17. 9. 07, (Annexure P-2 with the Writ Petition ). Such resolution and notification were challenged by way of aforesaid writ petition on the ground interalia that the selection of the respondent no. 4 being contrary to Section 69 of the Adhiniyam was illegal and bad. 4 as a Secretary of such Gram Panchyat, vide order dated 17. 9. 07, (Annexure P-2 with the Writ Petition ). Such resolution and notification were challenged by way of aforesaid writ petition on the ground interalia that the selection of the respondent no. 4 being contrary to Section 69 of the Adhiniyam was illegal and bad. As he could not hold the charge of such post because of his near relative brother Shri Rajendra prasad Tiwari was existing Panch of such Panchyat and by virtue of second proviso of such Section (1) of said Section 69 of the Adhiniyam the respondent no. 4 could not be selected. The other grounds are that the appointment process has not been carried out by the respondent no. 3 within thirty days from the date of issuance of letter by the competent authority, vide order dated 10. 7. 07 (Annexure P-6 with the writ petition ). As such after 30 days the Gram Panchyat became functus officio and did not have any authority to appoint the Panchyat karmi. In such situation the power to appoint Panchyat Karmi was with the prescribed authority under Section 86 of the Adhiniyam. Besides this, the appointment of the respondent no. 4 was also challenged stating that the appellant being member of Scheduled Tribe Category was entitled to be given priority preference under the Scheme. Such provisions are violated in such appointment. It is further pleaded that inspite of giving representation no action was taken by the authorities. With these grounds the appellant has prayed to quash the aforesaid resolution dated 21. 8. 07 and the notification dated 17. 9. 07 with further prayer for appropriate direction to the authorities to appoint him on such post. ( 3. ) IN the return of respondent no. 1 and 2 denying the allegations of the petition made against them the aforesaid appointment of respondent no. 4 on the post of panchyat Karmi and his notification as Secretary of Gram Panchyat Amiliyia are justified. It is also stated that such appointment is made in accordance with the scheme, circular and guidelines issued by the State Government. The claim of the appellant is stated to be misconceived. ( 4. ) THE respondent no. 3 - Gram Panchyat Amiliyia by filing its return supported the case of the appellant. ( 5. ) IN reply of respondent no. The claim of the appellant is stated to be misconceived. ( 4. ) THE respondent no. 3 - Gram Panchyat Amiliyia by filing its return supported the case of the appellant. ( 5. ) IN reply of respondent no. 4 the allegations made by the appellant against his appointment on the post of Panchyat Karmi and Secretary have been denied. It is admitted that the elder brother of the respondent no. 4 Shri Rajendra Prasad tiwari was Panch from ward no. 14 in Gram Panchyat Amiliyia but vide order dated 30,7. 07 he had tendered his resignation from such post and thereafter he did hot participate in the meeting of the Gram Panchyat dated 21. 8. 07 in which the aforesaid resolution was passed. All other allegations have also been denied and the prayer for dismissal of the writ petition is made. ( 6. ) ON consideration the learned Single Bench had dismissed the writ petition holding that in comparison of the appellant, the respondent no. 4 was more meritorious as he had secured 74% marks in the High School Certificate examination whereas the appellant had secured only 59. 6% marks in such examination. So far giving preference to the appellant is concerned, it was held that no reservation was made for such post under the Scheme or the existing law. According to the Scheme candidates of different categories if are equal on merits than the candidates belonging to S. C. , S. T. , O. B. C. and Woman category are to be given preference for such post. It was also held that under such Scheme Gram panchyat was empowered to appoint the Panchyat Karmi under the Scheme even after thirty days receiving the letter dated 10. 7. 07 from the authority. Besides this by giving interpretation to the provision of Section 69 of the Adhiniyam and the rules enacted under the Adhiniyam "the Madhya Pradesh Panchyat (Resignation) By Office Bearer) Rules, 1995" it was held that the selection/appointment of the respondent no. 4 on such post was not illegal but till the resignation submitted by Shri Rajendra Prasad Tiwari, the elder, brother of the respondent no. 4 from the post of Panch is accepted in accordance with such rules, the respondent no. 4 shall not be entitled to hold the charge of such post in gram Panchyat. 4 on such post was not illegal but till the resignation submitted by Shri Rajendra Prasad Tiwari, the elder, brother of the respondent no. 4 from the post of Panch is accepted in accordance with such rules, the respondent no. 4 shall not be entitled to hold the charge of such post in gram Panchyat. In such premises, by giving some observations for holding the meeting of Gram Panchyat to consider the resignation of Shri Rajendra Prasad tiwari within thirty days, the writ petition was dismissed, on which the original petitioner has come forward with this appeal. ( 7. ) SHRI Sanjay Agrawal, learned counsel for the appellant by referring the provision of Section 69 (1) and its second Proviso of the Adhiniyam said that it is undisputed fact on record that on the dates of passing the resolution dated 21. 8. 07 by the respondent no. 3 and issuing the notification dated 17. 9,07 by the respondent no. 2, the brother of the respondent no. 4 Shri Rajendra Pradesh Tiwari was elected panch of such Gram Panchyat and was squarely covered with the explanation of the aforesaid Sections and as per said provision the relative of Panch was not entitled to hold the charge of such post. According to the rules relating to the resignation of the office bearer of Panchyat his tendered resignation was not accepted or resolved by the Gram Panchyat or authority in accordance with law. Thus, on the date of such selection said brother of the respondent no. 4 was sitting Panch for all purposes and, therefore, the respondent no. 4 was not entitled to become Secretary for holding such charge. He further said that non participation in the meeting of Panchyat by the brother of the respondent no. 4 on dated 21. 8. 07, does not wash out the aforesaid position. In such premises, he prayed for quashment of impugned appointment of respondent no. 4 with a further prayer to appoint the appellant on such post by allowing his appeal. It is made clear that impugned order has not been assailed by the appellants counsel on other ground except the aforesaid. ( 8. ) LEARNED counsel for respondent no. 1, 2 and 4 have justified the impugned order and its findings stating that the same do not require any interference at this stage. ( 9. It is made clear that impugned order has not been assailed by the appellants counsel on other ground except the aforesaid. ( 8. ) LEARNED counsel for respondent no. 1, 2 and 4 have justified the impugned order and its findings stating that the same do not require any interference at this stage. ( 9. ) HAVING heard learned counsel for the parties at length and after going through, the record of the Panchyat and the petition alongwith the impugned order, we are of the considered view that the impugned order requires some interference at this stage. ( 10. ) AS the appellants counsel has assailed the impugned order only on the ground that in view of the provision of Section 69 (1) of the Adhiniyam the resplendent no. 4 being near relative of the Panch of such Gram Panchyat was not entitled to be selected for appointment of Panchyat Karmi to hold the charge of Secretary in such Panchyat and prayed to adjudicate this appeal only on such ground, therefore, the other findings given by the learned Single Judge do not require any reconsideration at this stage. Therefore, in this appeal this court has to adjudicate only the question whether under the Panchyat Karmi Yojna promulgated by the Stage of M. P by virtue of the power vested under Section 70 (1) r/w Section 69 (1) of the Adhiniyam, the respondent no. 4 was entitled to be selected for appointment of Panchyat Karmi for holding the charge of Secretary in the Gram Panchyat-respondent no. 3. ( 11. ) BEFORE proceeding further to examine the aforesaid issue for convenience, we would like to reproduce Sub Section 1 of Section 69 of the Adhiniyam the same reads as under :- 69. Appointment of Secretary and Chief Executive officer - (1) The State Government or the prescribed authority may appoint a Secretary for a Gram Panchyat or group of two or more gram Panchyats; provided that the person holding the charge of a Secretary of Gram Panchyat 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 Panchyat, if such a person happens to be relative of any office bearer of the concerned Gram Panchyat. Provided further that a person shall not hold charge of a secretary of Gram Panchyat, if such a person happens to be relative of any office bearer of the concerned Gram Panchyat. 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. ( 12. ) IN view of the aforesaid provision, on examining the case at hand, it is apparent that on the date of passing the resolution dated 21. 8. 07 (Annexure P-1 with the writ petition) and on the date of issuing notification dated 17. 9. 07 (Annexure P-2 with the writ petition) the brother of the respondent no. 4 Shri Rajendra Prasad Tiwari was the sitting Panch of respondent no. 3 - Gram panchyat. Although according to the respondent no. 4 he had tendered his resignation from such office on 30. 7. 07 and thereafter he did not participate in any meeting including the meeting dated 21. 8. 07. As. per available record, it appears that the resignation was received by some official on 24. 9. 07, subsequent to the meeting in which the impugned resolution (Annexure P-1 with the writ petition) was passed. We have not found any proceeding of the Panchyat or the order of the competent authority showing that even after receiving such resignation by the Sarpanch the same was accepted in any meeting of Panchyat. In such circumstances, it is apparent that on the date of passing of the resolution to select the respondent no. 4 his brother Shri Rajendra Prasad Tiwari was existing Panch of such Panchayat. ( 13. ) AS per finding in the impugned order passed by the learned Single Judge the provision of Ilnd Proviso of Sub Section (1) of Section 69 of the Adhiniyam are not an embargo against selection and appointment of respondent no. 4 on such post of Panchyat Karmi under the Scheme (Yojna) but ban would be against holding of the charge of the Secretary in such Gram Panchyat unless the resignation of his brother Shri Rajendra Prasad Tiwari from the post of Panch is accepted in accordance with the procedure provided under the rules enacted for that. ( 14. 4 on such post of Panchyat Karmi under the Scheme (Yojna) but ban would be against holding of the charge of the Secretary in such Gram Panchyat unless the resignation of his brother Shri Rajendra Prasad Tiwari from the post of Panch is accepted in accordance with the procedure provided under the rules enacted for that. ( 14. ) THE Proviso II of the aforesaid Sub Section 1 of Section 69 speaks that a person shall not hold the charge of a Secretary of Gram Panchayat if he happens to be relative of the office bearer of the concerned Gram Panchyat and as per its explanation the brother is squarely covered under the expression of "relative". In view of such provision it could not be disputed that on the date of appointment or selection of the respondent no. 4 on the alleged post of Panchyat Karmi his brother was the Panch in such Panchayat for all purposes because his alleged tendered resignation was not accepted by the Panchayat in accordance with the aforesaid rules. Therefore, respondent no. 4 could not be selected or appointed on such post for holding the charge of Secretary in such Gram Panchyat. ( 15. ) ALTHOUGH as per record the brother of the respondent no. 4 said Panch Shri rajendra Prasad Tiwari had not participated in the meeting of 21. 8. 07, in which the impugned resolution was passed, in pursuance of which, the notification dated 17. 9. 07 for giving charge as Secretary of such Gram Panchyat to respondent no. 4 was issued. But we are of the considered view that only on account of non participation of Shri Rajendra Prasad Tiwari in the aforesaid meeting would not provide a ground to draw the inference that he did not remain the Panch and the disqualification of the respondent no. 4 on such ground was washed out. In such situation, Shri Rajendra Prasad Tiwari if is held to be Panch of Such Panchayat on the date of said resolution, then the respondent no. 4 could not have been appointed as Panchayat Karmi or for holding the charge of Secretary after the notification. ( 16. ) NOW in the light of the Rules, we proceed to consider that impact of resignation letter (Annexure P-10) of said Shri Rajendra Prasad Tiwari from the post of panch addressed to the Sarpanch. 4 could not have been appointed as Panchayat Karmi or for holding the charge of Secretary after the notification. ( 16. ) NOW in the light of the Rules, we proceed to consider that impact of resignation letter (Annexure P-10) of said Shri Rajendra Prasad Tiwari from the post of panch addressed to the Sarpanch. According to the endorsement on it the same was received by some official on 24. 9. 07 while as per further endorsement the same was referred to the Secretary of the Gram Panchyat on dated 2. 4. 07. Such discrepancies are not properly explained on record. Besides this, we have not found any agenda or proceeding of the Gram Panchyat or the order of any competent authority showing that at any point of time prior to the meeting of panchayat dated 21. 8. 07 after receiving such resignation in compliance of concerning rules, any meeting of the Gram Panchyat in that respect was held or any resolution in this regard either for acceptance or refusal of resignation was passed. ( 17. ) UNDER the Adhiniyam for dealing with the resignation of such office Bearer, the Madhya Pradesh Panchyat (Resignation By Office/bearer)Rules 1995 are enacted and the concerning Rules 3 and 4 are read as under:- 3. Manner of giving notice :- (1) Any member who desires to resign his office shall give notice, there of 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 authorized 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 they notice was given to him and give a receipt thereof in Form b. 4. Acceptance of Resignation:- (1) On receipt of the notice under rule 3, the Secretary or chief Executive Officer shall forward such notice immediate to the District Deputy Director, Panchyat 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. Acceptance of Resignation:- (1) On receipt of the notice under rule 3, the Secretary or chief Executive Officer shall forward such notice immediate to the District Deputy Director, Panchyat 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 Panchyat 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 on shall be accepted by the panchyat. (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 the 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 Panchyat. (7) The Secretary or Chief Executive Officer of the Panchyat, as the case may be shall give intimation to the Collector and to the district Deputy Director Panchyat and Social Welfare about the acceptance of the resignation by the Panchyat. ( 18. ) EVEN otherwise for a moment contrary to record, if it is assumed that the resignation letter was given by the brother of the respondent no. 4 even on 24. 7. 07 as per provision of aforesaid rule 3, even then in the absence of its acceptance in accordance with the provision of aforesaid Rules, it can not be inferred that same was accepted and Shri Rajendra Prasad Tiwari ceased to be member of such gram Panchyat before holding the aforesaid meeting on dated 21. 8. 07. ( 19. 7. 07 as per provision of aforesaid rule 3, even then in the absence of its acceptance in accordance with the provision of aforesaid Rules, it can not be inferred that same was accepted and Shri Rajendra Prasad Tiwari ceased to be member of such gram Panchyat before holding the aforesaid meeting on dated 21. 8. 07. ( 19. ) ACCORDING to the aforesaid Rule 3 a member of the Gram Panchyat who desires to resign his office then he shall give a notice in writing in form a duly signed by him to the Sarpanch either in person or through his representative and the copy of the same shall also be sent to the Secretary. On receiving such notice the Secretary shall record on the notice the date on which and the time at which the notice was given to him. Thereafter such resignation could be dealt with in accordance with procedure prescribed under the above mentioned Rule 4. According to Sub Rule (2) of Rule 4 the notice of resignation was to be considered in the next meeting of the Panchayat after giving information to Shri Rajendra prasad Tiwari. On holding such meeting Shri Rajendra Prasad Tiwari had option to withdraw his resignation by giving in writing. If it is not withdrawn in such meeting then as per Sub Rule (5) of Rule 4 if such resignation is accepted by the panchyat then only such member shall cease to be member immediately after termination of said meeting while as per Sub Rule (6) of Rule 4 if concerning member whose resignation is under consideration inspite intimation, is not present in such meeting then his resignation shall be deemed to have been accepted after termination of such meeting thereafter he shall cease to be the member of the Panchyat. ( 20. ) WE have not found any proceeding either of the Panchyat or other official showing that any meeting with respect to consider the aforesaid notice of the resignation from the post of Panch by the Rajendra Prasad Tiwari was held. In absence of holding of such meeting it cannot be inferred that resignation of Shri rajendra Prasad Tiwari was accepted and he ceased to be a Panch and vacated the office of Panch before 21. 7. 08, the date on which impugned resolution was passed. In such circumstances, in absence of acceptance of resignation, brother of respondent no. In absence of holding of such meeting it cannot be inferred that resignation of Shri rajendra Prasad Tiwari was accepted and he ceased to be a Panch and vacated the office of Panch before 21. 7. 08, the date on which impugned resolution was passed. In such circumstances, in absence of acceptance of resignation, brother of respondent no. 4 continued to be a Panch of such Panchyat and the respondent no. 4 being his near relative could not be selected to hold the post of Panchayat karmi or to hold the office of Panchayat Secretary. ( 21. ) IN view of the aforesaid and juxtapose reading of the provisions of the scheme (Yojna) and aforesaid 69 (1) of the Adhiniyam and the above mentioned rules 3 and 4 relating to resignation of Office Bearer of Panchayat, it would be clear that the respondent no. 4 could not be selected for the post on the date of passing the resolution, i. e. 21. 7. 07. The Panchyat Karmi Yojna is brought in force to appoint a Panchyat Karmi with an object to give him the charge of the office of the Panchyat Secretary after the notification by competent authority. In such premises, we hold that the learned Single Judge has committed error in dismissing the petition of the appellant contrary to the provision of Section 69 of the Adhiniyam. Hence such finding of the impugned order is hereby set aside. ( 22. ) CONSEQUENTLY by allowing this appeal, the petition of the appellant is allowed in part and the resolution dated 21. 7. 07 (Annexure P-l with the writ petition)passed by the Gram Panchyat - respondent no. 3 selecting the respondent no. 4 as Panchyat Karmi and in pursuance of it notification dated 17. 9. 07 (Annexure P-2 with the writ petition) issued by the respondent no. 2 are set aside. In the available circumstances we have not found fit to give any direction for appointment of the appellant as Panchayat Karmi of the respondent no. 3. However, it is made clear that respondent no. 3 with the consultation of its authority shall be at liberty to appoint the Panchayat Karmi for holding the charge of Secretary of Gram Panchyat by adopting the fresh process of appointment under the aforesaid scheme. There shall no order as to the costs. ( 23. ) THE appeal is allowed. Appeal allowed.