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2010 DIGILAW 70 (MP)

Brajesh Shanna v. Nagendra Singh Sisodiya

2010-01-18

PIYUSH MATHUR, S.K.GANGELE

body2010
ORDER Mathur, J. -- 1. This intra-Court appeal has been preferred by Brajesh Shanna against the Order of the writ Court passed in writ petition No. 2071/ 08 (S) on Date 2.12.2009, whereby his appointment as Panchayat Karmi has been found to be contrary to the provisions of sections 70 and 86 (2) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter for short referred to as the "Panchayat Act"), in a writ petition preferred by Nagendra Singh Sisodiya, who had raised a grievance that instead of passing a fresh Resolution on the basis of the misconduct of the candidates, pursuant to an advertisement dated 27.7.2007, the Collector (Deputy Director, District Shivpuri) has unauthorizedly directed the Gram Panchayat to take steps to convene fresh exercise for the appointment of Panchayat Karmi. 2. The record demonstrates that an advertisement was issued on date 27.7.2007 by Gram Panchayat Bhainsravan, Tahsil Pohri, District Shivpuri for inviting applications for the Post of Panchayat Karmi, pursuant to which as many as 10 candidates had submitted their applications and while considering their respective merits, a resolution was passed by the Gram Panchayat on date 10.8.2007, whereby one Devendra Kumar was appointed as Panchayat Karmi, instead of being less meritorious to writ petitioner Nagendra Singh Sisodiya. 3. The appointment of Devendra Kumar, who was appointed by majority of members, was challenged before the Sub-divisional Officer, who allowed the appeal by his order dated 15.11.2007 and the resolution passed by the Gram Panchayat on date 10.8.2007 was set aside and consequently the Gram Panchayat was directed to pass a fresh Resolution while considering the merits of the candidates. 4. Since the Gram Panchayat was required to pass a fresh Resolution after the passing of the Order of the Sub-divisional Officer, the petitioner herein submits that the Deputy-Director was not competent in the eyes of Law to have straightway directed to Gram Panchayat to issue a fresh Advertisement for filling up the Post of Panchayat Karmi, in view of sections 70 and 86 (2) of the Panchayat Act, inasmuch as the Gram Panchayat has not expressed its inability of fulfilling the Post and there exists no document to demonstrate that inspite of issuance of directions by the Competent Authority, the Gram Panchayat failed to comply with the same. 5. 5. The petitioner had attacked mainly on the action of the Collector (Deputy Director, District Shivpuri), whereby a direction was given to the Gram Panchayat for publishing a fresh Advertisement. It seems that an Advertisement was issued on date 14.1.2008 by the Chief Executive Officer Janpad Panchayat, Pohri, by inviting applications for the Post of Panchayat Karmi for the Gram Panchayat and the Appointment Order was issued in favour of Brajesh Sharma on date 26.3.2008. 6. It is also argued on behalf of the Private Respondent that he has been selected by an Independent Advertisement and being the most meritorious candidate, he has rightly been appointed on the Post of Panchayat Karmi. Although, he has, not adverted to the ligitimacy of the directions of the Deputy Director and also remained silent about the scope and sweep of the provisions of the Panchayat Act in relation to the legality of the steps taken by the Panchayat in initating a Fresh Process of Appointment. The counsel for the State has also justified the action of the State Government. 7. After hearing the parties, the writ Court vide its order dated 2.12.2009 has found the entire exercise of publication of Fresh Advertisement to be contrary to the provisions of the Panchayat Act and has quashed the order of appointment issued in favour of appellant Brajesh Sharma (Respondent No. 5 in write petition). Aggrieved by the aforesaid judgment, Brajesh Sharma has preferred this writ petition before this Court. 8. We have heard Shri S.B. Gupta, learned counsel for the appellant and Shri M.P.S. Raghuwanshi, learned counsel for the respondent No.1 and have perused the record of the case. 9. From the perusal of the record. it is evident that the Sub-divisional Officer vide order dated 15.11.2007 has allowed the appeal and the Resolution passed by the Gram Panchayat oil date 10.8.2007 was set aside, where-after there was no necessity for holding a fresh exercise of filling the Post, but the Panchayat was required to pass a fresh resolution, on the basis of the merit of the Candidates. A close scrutiny of the entire record/documents demonstrate that the Gram Panchayat was neither negligent in performing its duties of filling the post nor it failed to fill up the post of the Panchayat Karmi and as such, there was no occasion for the Collector/Deputy Director to have issued instructions or directions for the fulfillment of the vacancy in terms of the provisions as contained in section 86 of the Panchayay Act. Therefore, the interference of the Collector/ Deputy Director appears to be contrary to the provisions of sections 70 and 86 of the Panchayat Act. 10. The contention of the learned counsel for the appellant about the availability of the powers of the Collector of issuing directions for filling the Post, cannot be questioned, but the same has to be evaluated in the fact situation of each case because unless there is a willful default or negligence on the part of the Gram Panchayat, the competent Authority (Collector) cannot issue such direction in terms of section 86 of the Panchayat Act. The learned counsel for the appellant has placed reliance on a Division Bench judgment of this Court, which is required as 2008 (II) MPWN 86 Leelawati and another v. State of M.P & others. wherein the Division Bench has categorically found that the Collector being the prescribed authority had issued a direction to the Gram Panchayat to perform its duty of appointing a Panchayat Karmi and the Panchayat had failed to comply such direction. But here is a case where, on the basis of the available record, it could not be gathered that at any point of time, the Competent Authority (Collector) had ever directed the Panchayat to perform its duty of filling the Post of Panchayat Karmi and the Panchayat did fail to comply with the same. Section 36 of the Panchayat Ach has an independent sweep of its own, but the same is circumscribed as the same is based upon certain events to occur first, which include inability or disability of a Panchayat in complying with the direction of the competent Authority, but in absence of issuance of directions to the Panchayat, the Competent Authority cannot straightway exercise that power. 11. 11. The writ Court has very carefully examined the factual and legal aspect of the matter and has found that the Deputy Director (Collector, Shivpuri) was not competent to order for the issuance of a fresh, Advertisement, in absence of fulfillment of the requisite provisions of section 86 of the Panchayat Act and as such the writ Court has rightly set aside the direction of the Collector and Advertisement dated 14.1.2003 as also the consequently issued appointment order dated 26.3 .2008, in favour of appellant Braj esh Sharma. 12. Therefore, we find no reason to interfere in the direction of the writ Court as given to the Gram Panchayat for considering all the applications received pursuant to the Advertisement dated 27.7.1997, on their respective merits: 13. Therefore, this Court finds no illegality in the impugned orderofthe4writ Court and consequently the writ appeal is dismissed. However, there shall be no order as to costs.