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2011 DIGILAW 274 (MP)

Chandra Kant Kushwaha v. Collector, Katni

2011-02-25

RAJENDRA MENON

body2011
ORDER 1. Challenging the order dated 15.11.2010 (Annexure P-l), passed by the Collector, Katni and the order dated 22.12.2009 (Annexure P-2), passed by the Sub Divisional Officer, Revenue this writ petition has been filed by the petitioner. 2. Before the Sub Divisional Officer (hereinafter referred to as 'SDO') and the Collector concerned, challenge was made by respondent No.5 to a resolution dated 17.3.2009, with regard to cancellation of his appointment made on the post of Panchayat Karmi. The petition is filed mainly on the ground that against the resolution (Annexure P-5), dated 17.3.2009, appeal before the S.D.O. was not maintainable and, therefore, the authorities having acted without jurisdiction, the entire order is unsustainable. 3. Facts that have come on record indicate that the Gram Panchayat issued an advertisement for appointment to the post of Panchayat Karmi. Apart from various other persons, petitioner and respondent No.5 were candidates, vho had submitted their candidature for appointment to the post in question. Gam Panchayat passed a resolution on 6.9.2007 (Annexure P-3) and finding respondent No. 5- Manoj Kumar Dubey, to be more meritorious, he was recommended to be appointed to the post of Panchayat Karmi. In pursuance to the aforesaid resolution a separate order was passed on 7.9.2009 appointing him on the post of Panchayat Karmi. It seems that certain objections were raised by the petitioner and various other office bearers to the effect that the appointment of respondent No.5 to the Panchayat in question is illegal because the Sarpanch of the Gram Panchayat, Shri Bhushan @ Bhura Pathak, was related to respondent No.5 in as much as respondent No.5 was his brother-in-law. It was, therefore, alleged that the appointment is illegal. However, when nothing was done it is seen that the petitioner herein challenged the appointment made vide resolution dated 6.9.2007 and order dated 7.9.2007 before the SDO and the same was registered as Appeal No. 24-A/89/09/l O. In the meanwhile, respondent No.5 started working in the Panchayat in question and on the basis of certain complaints made with regard to election of Shri Bhushan @ Bhura Pathak for the purpose of getting elected he had submitted some false declaration and affidavit. The matter was taken up by the Collector and vide order dated 7.3.2009 (Annexure P-4), the election of Shri Bhushan @ Bhura Pathak to the post of Sarpanch of the Panchayat was quashed. The matter was taken up by the Collector and vide order dated 7.3.2009 (Annexure P-4), the election of Shri Bhushan @ Bhura Pathak to the post of Sarpanch of the Panchayat was quashed. Immediately after Shri Bhushan@ Bhura Pathak was removed from the post of Sarpanch, the Gram Panchayat again met under the Chairmanship of Shri Shyam Lal, the Up-Sarpanch and passed a resolution (Annexure P-5) on 17.3.2009, ordering removal of respondent No.5 from the post of Panchayat Karmi on the ground that he was related to Shri Bhushan @ Bhura Pathak. However, without issuing notice to respondent No.5 and without hearing him, his appointment made vide order dated 7.9.2007 was cancelled by this resolution. Accordingly, respondent No.5 challenged this resolution dated 17.3.2009 (Annexure P-S) before the SDO and the SDO having allowed his appeal and quashed his termination vide order dated 22.12.2009 (Annexure P-2) and the Collector having upheld the order of the SDO vide Annexure P-l, dated 15. 11.20 I 0, this writ petition is filed by the petitioner assailing both these orders. 4. During the course of hearing, the only ground canvassed by Shri Mukesh Agrawal, learned Counsel for the petitioner, was to the effect that against the resolution of the Gram Panchayat, appeal before the SDO was not maintainable and places reliance on an unreported judgement of this Court in Writ Petition No. 161 19/2007 (S), Jagdish Nagvanshi v. State of Madhya Pradesh and others, decided on 2. 12.2008. 5. That apart, two other grounds raised in the writ petition are to the effect that appointment of respondent No.5 is illegal because he was related to the then Sarpanch Shri Bhushan @ Bhura Pathak and he was not a resident of village Kailwara Khurd, he was a resident of New Katni Junction, Katni and, therefore, his appointment is illegal. Accordingly, petitioner has assailed the impugned order. 6. Accordingly, petitioner has assailed the impugned order. 6. Shri Sushil Tiwari, learned counsel for respondent No.5, with regard to the first objection pertaining to maintainability of the appeal before the SDO, placing reliance of the judgment of Devidayal Raikwar v. State of M.P and others, 2009 (I) JLJ 7 = 2008 (4) MPJL 647, invited my attention to a subsequent judgment in the case of Abdul Hasan Qureshi v. State of M. P and others, 2009 (1) JLJ 320 = 2008 (4) MPLJ 546 and argued that in this case after considering the law laid down in the case of Devidayal Raikwar (supra), and various other cases, it has been held by the learned Bench that if the resolution passed in substance amounts to an order, which has the effect of cancelling the appointment made, the appeal was maintainable. Taking me through the resolution dated 17.3.2009 (Annexure P-5) and pointing out that this resolution is in fact an order cancelling the appointment of respondent No.5 made vide order dated 7.9.2007 and, therefore, in the light of the law laid down in the case of Abdul Hasan Qureshi (supra), the appeal was maintainable, resistance is made to the first ground of challenge. 7. As far as the other two grounds with regard to respondent No.5 being related to the then Sarpanch Shri Bhushan @ Bhma Pathak and the fact about his not being a resident of Village Kailwara Khurd is concerned, Shri Sushil Tiwari, learned Counsel, refutes the same and submits that when the resolution was passed on 6.7.2007 Shri Bhushan @ Bhura Pathak did not participate in the meeting and now after his removal the said objection is not sustainable. That apart, it was argued by him that when respondent No.5 was appointed after resolution dated 6.9.2007 was passed and when order dated 7.9.2007 . was passed and when he had worked for about 2 years, cancelling his appointment in the manner done without issuing notice and without hearing him is illegal and in support of the aforesaid he invites my attention to the law laid down in the case of Narayan Singh Rajput v. State of M.P and others, 2004 (I) Vidhi Bhasvar 234 = 2003 (3) MPLJ 539 , Prajapal Singh v. State of M.P and others. 2009 (l) MPWN 24 = 2009 (1) MPLJ 640 and Bherulal v. State of M.P and others. 2009 (l) MPWN 24 = 2009 (1) MPLJ 640 and Bherulal v. State of M.P and others. 2010 (II) MPWN 103 = 2010 (3) MPLJ 454 . Accordingly, contending that the termination is illegal, being contrary to the principles of natural justice, it is argued by Shri Sushil Tiwari that no case is made out for interference. 8. J have heard learned counsel for the parties and perused the records. 9. As far as the first objections with regard to maintainability of the appeal against the resolution is concerned, if the resolution dated 17.3.2009 (Annexure P-5) is taken note of, it in fact is a decision in the nature of an order passed to terminate the service of respondent No.5, the resolution indicates that the Panchayat has terminated the services of respondent No.5. After the resolution was passed, no further orders were issued instead the service of respondent No.5 was brought to an end by virtue of the aforesaid resolution itself, which was in the nature of an order. That being so, in view of the law laid down in the case of Adbul Hasan Qureshi (supra), wherein it has been held by the learned Bench that if the resolution in substance amounts to an order then an appeal was maintainable before the SDO. The judgment in the case of Abdul Hasan Qureshi (supra), is after taking note of the law laid down in the case of Devidnyal Raihvar (supra). In that view of the matter, the main objection with regard to maintainability of the appeal is found to be unsustainable. 10. As far as the other ground with regard to disentitlement of respondent No.5 to hold the post due to his relationship with the Sarpanch Shri Bhushan @ Bhura Pathak and termination on his service on ground of his residence is concerned, once respondent No.5 was appointed after resolution was passed on 6.9.2007 vide order dated 7.9.2007 and when he has worked for about more than 1-1/2 years then before terminating his services it was incumbent for the Gram Panchayat to issue a notice to him, hear him and thereafter take action after giving him opportunity of defence. The question with regard to respondent No.5 being related to the Sarpanch and the effect of such relationship on the selection process and the fact about the residence of this respondent are questions of fact and once he was appointed and was working his services could not be terminated without issuing notice to him and without granting him opportunity of hearing. In that view of the matter, taking note of the consistent law laid down by this Court in the cases of Narayan Singh Rajput (supra), Prajapal Singh (supra), and Bherulal (supra), the action taken for terminating the services of respondent No.5 without notice and without opportunity of hearing is liable to be quashed on this count alone. 11. Even though the Collector and the Commissioner have not adverted to consider these questions on merit, but considering the fact' that the termination is in gross violation to the principles of natural justice, this Court does not deem it appropriate to remand the matter back for consideration. Instead, finding the termination to be per se illegal, due to breach of the legal principle required to be followed for terminating the services of an employee on allegations of obtaining appointment in an illegal manner, the orders passed by the Collector and the SDO does not warrant any interference. 12. Accordingly, finding no merit in the writ petition is same has to be dismissed. However, if the Gram Panchayat feels that the appointment of respondent No.5 is vitiated for any reason whatsoever, they are at liberty to proceed in accordance with law for taking action against respondent No.5 for the same. 13. With the aforesaid liberty to the Gram Panchayat, finding no case for interference into the matter the writ petition is dismissed.