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Madhya Pradesh High Court · body

2009 DIGILAW 480 (MP)

Manoj KumarYadav v. State of M. P.

2009-04-15

SANJAY YADAV

body2009
ORDER 1. This order shall govern the final disposal of W.P. No. 12970/2007 and W.P. No. 87/2008, as the controversy raised therein are interlinked and, therefore, were heard analogously. 2. Challenge in W.P. No. 12970/2007 is to an advertisement dated 30.8.2007 issued by the Collector, Tikamgarh, inviting applications for appointment of Panchayat Karmi; Gram Panchayat Sendri, Janpad Panchayat Niwari, District Tikamgarh, on the anvil that the same being in excess of its power under section 86 (2) of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (referred to as Act of 1993). 3. The relevant facts leading to challenge are that, the petitioner was appointed as Panchayat Karmi vide order dated 22.8.2007 which was on the basis of proposal dated 21.8.2007, passed by Gram Panchayat, Sendri, in a meeting convened in pursuance to order dated 13.8.2007 passed by Collector, Tikamgarh. Consequent thereof, petitioner joined his service on 23.8.2007. Subsequently the Collector, Tikamgarh, ignorant of the fact that, appointment of Panchayat Karmi is already in vogue, issued the impugned advertisement on 30.8.2007 for recruitment of Panchayat Karmi. This action was purportedly on the basis of the fact that the appointments were not effected within 60 days from 25.6.2007, the date on which the State Government issued the Circular No. F-2-22/Panchayat/07. It appears that Collector lost sight of circular dated 13.8.2007 issued by the State Government, whereby, the respective collectors were called upon to ensure the appointment of Panchayat Karmis wherever the posts were vacate. Even otherwise, the petitioner was appointed within 60 days from 25.6.2007. And that is how the petitioner is aggrieved of the action of the respondent No. 2 who issued the impugned advertisement. It is urged that the action of respondent No. 2 is without any authority. 4. In W.P. No. 87/2008, the petitioner was appointed in pursuant to the advertisement dated 30.8.2007, which is under challenge in W.P. No. 12970/2007. The said appointment was subject to petitioner fulfilling the terms of appointment stipulated in the appointment letter dated 26.11.2007, Annexure P-l, viz., that he is not related to any of the office bearer of Panchayat, domicile of Gram Panchayat, no criminal case is registered, minimum age as on 1.7.2007 must be 18 years and should produce original certificate of Higher Secondary (Class XI) or Matric (10 + 2) of Board of Secondary Education, Bhopal or of other recognized Board. The petitioner was called upon to furnish his original certificate regarding eligibility but since he failed to do so, his appointment was cancelled. In respect of the certificates produced by the petitioner from Madhyamik Shiksha Parishad Uttar Pradesh, there are claims and counter claims. The petitioner asserts that the certificate produced by him is genuine; whereas the intervener has filed the letter dated 18.1.2008 by the Head Master Christian Inter College, Jhansi (U.P.), obtained under Right to Information Act, 2005, wherein it is revealed that, the petitioner did not appear in the examination held in the year 1991. Be that as it may, since the issue regarding genuineness of certificate is being enquired upon by the office of District Panchayat and Social Justice, Tikamgarh, as is evident from letter dated 21.5.2008, this Court refrain from expressing any opinion thereon. 5. The issue however which crops up for consideration at present is whether the Collector, Tikamgarh, is justified in its action of invoking his power under section 86 (2) of the Act of 1993, when in fact an appointment of the petitioner as Panchayat Karmi was already effected on the basis of the resolution of Gram Panchayat passed on 21.8.2007. 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 is 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." 6. The State Government in order to ensure that the vacant post of Panchayat Karmi be filled in, issued a circular on 13.8.2007 calling upon the respective authorities to ensure filling of such vacant post of Panchayat Karmi, Gram Panchayat, Sendri initiated the proceedings to fill in the post and in a meeting held on 21.8.2007 a resolution was passed proposing appointment of the petitioner, thus there was the compliance of the direction of the State Government to fill in the vacant post of Panchayat Karmi in Gram Panchayat Sendri. It is contended that the appointment of the petitioner since was not within stipulated time 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 a nullity, the Collector did not err in invoking his powers under section 86 (2) of the Act of 1993. 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 leLr vkosnu i= xzke iapk;r dh lkekU; lHkk ds le{k fopkjkFkZ izLrqr fd, tkoasxsA xzke iapk;r dh lkekU; lHkk izkIr vkosnu i=ksa ij fopkj dj mEehnokj dk p;u djsxhA ,d mEehnokj dk uke izrh{kklwph esa j[ksxhA 4-5 iapk;r vius izLrko ds ek/;e ls ,slh fu;qfDr djsxh] ,slh fu;qfDr fu/kkZfjr le;kof/k ds fy, iw.kZdkfyd@va'kdkfyd vFkok lafonk ij gks ldsxhA fu;qDr O;fDr dks ljiap }kjk fu;qfDr i= tkjh fd;k tkosxkA bldh izfr eq[; dk;Zikyu vf/kdkjh] tuin iapk;r dks fjdkMZ gsrq Hksth tkosxhA blesa iapk;rdehZ dh laf{kIr tkudkjh nh gksxhA tuin iapk;r esa ,d iath la/kkfjr dh tkdj rn~fo"k;d izfof"V;k¡ j[kh tkosxhA** 7. The Gram Panchayat Sendri, in exercise of its power under the scheme, resolved and appointed the petitioner. The order passed by the Panchayat 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. 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 under section 86 (1). 8. Having thus analysed, there appears no iota of doubt that, impugned advertisement dated 30.8.2007 is in excess of powers under section 86 (2) of the Act 1993 and therefore the same is quashed. 9. Since it is held that the exercise of powers under section 86 (2) by Collector, Tikamgarh is without any authority, the appointment of the petitioner in W.P. No. 87/2008 effected in pursuance thereof has no legal sanctity and, therefore, void ab initio. In result W.P. No. 87/2008 is dismissed whereas W.P. No. 12970/2007 is allowed to the extent above. However, no costs.