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2009 DIGILAW 448 (MP)

Seema Singh v. State of M. P.

2009-04-08

SANJAY YADAV

body2009
ORDER 1. The petitioner in this writ petition under Article 226/227 of the Constitution of India questions the validity of order dated 5.11.2007 (Annexure P-9); whereby, respondent No.6 has been appointed as Panchayat Karmi and notified as Panchayat Secretary by Collector, Sidhi in exercise of his powers under section 86 (2) read with section 69 (1) of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. 2. The relevant facts leading to challenge are that the State Government issued directions on 13.9.2007 to respective Collector to ensure filling up of the vacant post of Panchayat Karmi in respective Gram Panchayat. In pursuance to the said order of the State Government, Gram Panchayat Gijwar District, Sidhi initiated the proceedings by issuing advertisement for appointment of Panchayat Karmi. In response, 46 applications were received, and on the basis of eligibility criteria, a merit list was prepared, wherein, the respondent No.1 with 71.38% of marks was placed at serial No.1 and the petitioner with 69.08% at serial No.2. The Gram Panchayat held its meeting on 1.9.2007 to select the suitable candidate. However, no decision could be arrived at in the said meeting and the matter was referred to the Chief Executive Officer, Janpad Panchayat, Majhauli. Subsequent thereof, another meeting was convened on 4.9.2007, wherein, it was resolved to appoint petitioner as Panchayat Karmi. Consequent whereof, an order on 5.9.2007 was passed by the Sarpanch, Gram Panchayat Gijwar appointing the petitioner as Panchayat Karmi. This order of appointment was challenged by respondent No.6 before the Sub-Divisional Officer, which as submitted at Bar, is still pending. Subsequent to the appointment of the petitioner as Panchayat Karmi one letter dated 30.10.2007 (Annexure R-4/4) addressed to Deputy Director, Panchaya and Social Justice Sidhi, was sent by the Chief Executive Officer Janpad Panchayat, Majhauli proposing an initiation of a proceeding for appointment of Panchayat Karmi for village Gijwar. This letter, it appears has been written ignoring the fact that the appointment of Pane hay at Karmi was already resorted to by the Gram Panchayat vide its order dated 5.9.2007. The Competent Authority, i.e. Collector Sidhi while taking note of the letter dated 30.10.2007 and the report annexed therein passed the order on 5.11.2007 appointing respondent No.6 as Panchayat Karmi in exercise of his power under section 86 (2) of the Act of 1993. It is this action which is being questioned in the present writ petition. 3. The Competent Authority, i.e. Collector Sidhi while taking note of the letter dated 30.10.2007 and the report annexed therein passed the order on 5.11.2007 appointing respondent No.6 as Panchayat Karmi in exercise of his power under section 86 (2) of the Act of 1993. It is this action which is being questioned in the present writ petition. 3. The issue which crops up for consideration is whether the Collector is justified in his action in invoking his powers under section 86 (2) of the Act of 1993 when in fact an order of appointment of Panchayat Karmi was passed on 5.9.2007 on the basis of a resolution of Gram Panchayat passed on 4.9.2007. 4. Section 86 of the Act of 1993 stipulates: 86. Power of State Government to issue order directing Panchayat for execution of works in certain cases. -- (1) The State Government or the prescribed authority may, by an order in writing, direct any Panchayat to perform any duty imposed upon it, by or under this Act, or by or under any other law for the time being in force or any work as in not being performed or executed, as the case may be, by it and the performance or execution thereof by such Panchayat is, in the opinion of the State Government or prescribed authority, necessary in public interest. (2) The Panchayat shall be bound to comply with direction issued under sub-section (1) and if it fails to do so the State Government or the prescribed authority shall have all necessary powers to get the directions complied with at the expense, if any, of the Panchayat and in exercising such powers it shall be entitled to the same protection and the same extent under this Act as the Panchayat or its officers or servants whose powers are exercised. 5. The State Government in order to ensure that the vacant post of Panchayat Karmi be filled up issued a circular on 13.8.2007 calling upon the respective authorities to ensure filling up of such vacant post of Panchayat Karmi. 5. The State Government in order to ensure that the vacant post of Panchayat Karmi be filled up issued a circular on 13.8.2007 calling upon the respective authorities to ensure filling up of such vacant post of Panchayat Karmi. Gram Panchayat, Gijwar District Sidhi, in pursuance to the said instructions, initiated the proceedings to fill up the post and though in a meeting dated 1.9.2007 no decision could be taken, but in a subsequent meeting held on 4.9.2007 a resolution was passed, which culminated into an order of appointment dated 5.9.2007, thus there was the compliance of the direction of the State Government to fill up the vacant post of Panchayat Karmi in Gram Panchayat, Gijwar. It is contended on behalf of respondents that the appointment of the petitioner since was not in accordance with merit as contemplated in the policy of the State Government, therefore, the same was rightly adjudged as a violation of Government's order as envisaged under section 86 (1) and treating it to be a nullity, the Collector did not err in invoking his powers under section 86 (2) of the Act of 1993. 6. In the considered opinion of this Court the proceeding as initiated by the Collector suffers from the vice of colourable exercise of power. Under the Panchayat Karmi Scheme of 1995 clause 4.4 and 4.5 empowers the Panchayat to appoint Panchayat Karmi. The said clauses exposits : "4.4. All the applications shall be placed before the General Body of the Gram Panchayat for consideration. General Body of the Gram Panchayat after consideration on the applications shall select a candidate and place a candidate in the waiting list. 4.5. Panchayat by virtue of its resolution shall make such appointment within the specified time limit, on full time/part time or contract basis. Sarpanch shall issue appointment letter to selected person. Its copy shall be forwarded to the Chief Executive Officer, Janpad Panchayat, for record. Brief information about the 'Panchayat Karmi' shall be given therein. A register shall be maintained in the Janpad P.anchayat and entries to this effect shall be made." 7. The Gram Panchayat Gijwar in exercise of its power under the Scheme resolved and appointed the petitioner. The order passed by the Panchayat since is appealable, as has been held in Devidayal Raikwar v. State of M.P. and others [ 2009 (1) JLJ 7 = 2008 (3) MPHT 505 ]. The Gram Panchayat Gijwar in exercise of its power under the Scheme resolved and appointed the petitioner. The order passed by the Panchayat since is appealable, as has been held in Devidayal Raikwar v. State of M.P. and others [ 2009 (1) JLJ 7 = 2008 (3) MPHT 505 ]. The correctness of the order passed in favour of the petitioner could therefore be adjudged only in an appeal before concerning Sub-Divisional Officer and no suo motu powers lies with Collector to adjudge its validity. In view of this, there was no occasion for the Collector to have treated the order as a nullity and resorted thereafter to exercise his powers under section 86 (2). The exercise of powers under section 86 (2) could only be in the event of non-compliance of the direction of the State Government, and in the case at hand, the direction of the State Government was to fill in the vacant post and the said compliance having been effected no violation can be said to have taken place as contemplated under section 86 (1). 8. Having thus analysed there appears no iota of doubt that impugned order dated 5.11.2007 suffers from the vice of arbitrariness, and therefore, the same is quashed. The authorities concerned shall now proceed to act in accordance with section 69 of the Act of 1993 in respect of the petitioner. The respondent No.6 will, however, be at liberty, to proceed with the appeal preferred by him against the order dated 5.9.2007 and the appellate authority should be well to decide the same as expeditiously as possible, and preferably within a period of two months from the date of communication of this order. 9. The petition is allowed to the extent above. No costs.