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Madhya Pradesh High Court · body

2011 DIGILAW 507 (MP)

Veer Singh Gosh v. State of M. P.

2011-04-27

RAJENDRA MENON

body2011
JUDGMENT : Challengingthe order-dated 31.7.2010 - Annexure P/1, passed by the Commissioner, Sagar Division, Sagar and theorder passed by the Collector, Tikamgarh as containedin Annexure P/9 dated 22.4.2010, in the matter of appointment of respondentNo.5 on the post of Panchayat Karmi in Gram Panchayat Barmatal , Janpad Panchayat Jatara , District Tikamgarh , thiswrit petition has been filed. 2.Facts that have come on record indicates that Collector, Tikamgarh vide Annexure P/2 dated 6.11.2007 appointed respondent No.5 Shri Rohit Singh Parmar on thepost of Panchayat Karmi soalso on the post of Panchayat Secretary. In the order- Annexure P/2 a condition was stipulated that if any criminal case isregistered against the employee Shri Rohit Singh Parmar , his serviceswould be terminated. However,after his appointment when it was found that respondent No.5 is implicated incertain criminal cases, the Collector passed the order -Annexure P/3 on26.11.2007 and cancelled the appointment of respondent No.5 on the post of Panchayat Secretary ordered under section 69(1) of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam , 1993 (hereinafter referred to as ' Adhiniyam of 1993'). This order-dated 26.1 1.2007 -Annexure P/3 was challenged by respondent No.5 by filing a revision before theAdditional Commissioner, and the Additional Commissioner vide order-dated5.7.2008 -Annexure P/4 found that due to involvement of respondent No.5 Shri Rohit Singh Parmar in certain criminal cases, he cannot continue as a Panchayat Secretary and as his termination from the post of Panchayat Secretary was a result of condition Clause(iv) stipulated in the appointment order - Annexure P/2, dismissed the same.Challenging the said order passed by the Additional Commissioner, petitionerpreferred a second revision before the Minister of the Department concerned andthe Minister also dismissed the same vide Annexure P/5 dated 23.5.2009.Finally, respondent No.5 Shri Rohit Singh Parmar challenged the orders passed by theCommissioner and the Minister before this Court in W.P.No .5844/2009 and the writ petition was also dismissed by this Court vide AnnexureP/6 on 22.6.2009. 3.In the meanwhile, the Sarpanch of the Gram Panchayat on the basis of a resolution passed on 19.9.2009vide Annexure P/7, appointed the petitioner on the post of Panchayat Karmi and the Collector vide order-dated 17.11.2009 -Annexure P/8 exercising powers conferred upon him under section 69(1) of the Adhiniyam of 1993 appointed the petitioner as Panchayat Secretary. 3.In the meanwhile, the Sarpanch of the Gram Panchayat on the basis of a resolution passed on 19.9.2009vide Annexure P/7, appointed the petitioner on the post of Panchayat Karmi and the Collector vide order-dated 17.11.2009 -Annexure P/8 exercising powers conferred upon him under section 69(1) of the Adhiniyam of 1993 appointed the petitioner as Panchayat Secretary. As the appointment of petitioner wasmade on the post of Panchayat Karmi , interalia contending that the post of Panchayat Karmi is not vacant,respondent No.5 is still holding the post of Panchayat Karmi , his appointment on the post of Panchayat Karmi has not beenterminated, the Collector vide order-dated 26.11.200/-Annexure P/3 has onlyterminated the appointment of respondent No.5 on the post of Panchayat Secretary, appeal was filed by respondent No.5before the Collector, Tikamgarh assailing theappointment of the petitioner on the post of Panchayat Karmi . The Collector heard all concerned and vide orderdated 22.4.2010 -Annexure P/9 found that the post of Panchayat Karmi in the Gram Panchayat was not vacant, respondent No.5 was appointed to the post of Panchayat Karmi , his appointmenton the post of Panchayat Karmi is not cancelled and, therefore, finding petitioner to have been appointed onthe post of Panchayat Karmi by the Gram Panchayat in an illegal manner withoutpost being available, the Collector quashed the appointment of the petitioneron the post of Panchayat Karmi vide order -Annexure P/9. Challenge to this order having failed before theCommissioner also vide Annexure P/1 dated 31.7.2010, this writ petition hasbeen filed assailing these orders. 4. Shri R.K. Samaiya , learnedcounsel for the petitioner, argued that respondent No.5 was appointed on thepost of Panchayat Karmi and Panchayat Secretary by the Collector vide order-dated6.11.2007 -Annexure P/2 and as per the condition stipulated in this order dueto pendency of the criminal cases against him, hisappointment was cancelled vide Annexure P/3 dated 26.11.2007 and this order -Annexure P/3 having been upheld by the Commissioner, by the Minister of theDepartment and also by this Court vide orders - Annexures P/5, P/6 and P/7, it is stated that the interference now made by the Collectorand the Commissioner is unsustainable. Shri Samaiya argued that once after termination of the serviceof respondent No.5 by the Collector from the post of Panchayat Karmi and Panchayat Secretary, petitioner is appointed by the Gram Panchayat vide Annexure P/7 and when he is also notified as a Panchayat Secretary by the Collector vide Annexure P/8, further interference by theCollector and the Commissioner in the matter is wholly unsustainable. It wasargued by him that the Collector having exercised the powers by terminating theservices of respondent No.5 vide order - Annexure P/3 and thereafter appointingthe petitioner as Panchayat Secretary vide AnnexureP/8 could not review or recall both these orders vide Annexure P/9 dated22.4.2010. Accordingly contending that the Collector has no authority to reviewor recall his own order and stating that the action of the Collector and theCommissioner in interfering with the matter is wholly unsustainable, learnedcounsel for the petitioner seeks for interference into the matter. 5.By inviting my attention to a judgment rendered by a Division Bench of thisCourt, in the case of Leelawati and another Vs. Stateof MP and others, 2008 (4) MPHT 470 , Shri R.K. Samaiya argued that the Collector has no power forreviewing his own action once he had cancelled the appointment of respondentNo.5 on the post of Panchayat Karmi and Panchayat Secretary. Accordingly, Shri Samaiya on the aforesaidpremises prays for interference into the matter and took me through the ordersimpugned in detail to emphasize his contention. 6. Smt . Accordingly, Shri Samaiya on the aforesaidpremises prays for interference into the matter and took me through the ordersimpugned in detail to emphasize his contention. 6. Smt . Shobhana Koshta , learned counsel for respondent No.5, refuted theaforesaid contention and argued that appointment of respondent No.5 was made bythe Collector vide order - Annexure P/2 not only to the post of Panchayat Karmi , but also to thepost of Panchayat Secretary and vide order - AnnexureP/3 it was only the appointment of respondent No.5 on the post of Panchayat Secretary that was cancelled by the Collector.That being so, when the appointment of respondent No.5 on the post of Panchayat Karmi was notterminated, there was no vacant post of Panchayat Karmi and when the Gram Panchayat illegally, even without vacancy being available, appointed the petitioner as Panchayat Karmi and the Collectorwithout appreciating these factors notified the petitioner as Panchayat Secretary, an appeal was filed by the petitionerand in the appeal the Collector has interfered in the matter rightly becausethe appointment of respondent No.5 on the post of Panchayat Secretary was only terminated and even after his termination from the post of Panchayat Secretary, he continued to hold the post of Panchayat Karmi and, therefore,the Collector and the Commissioner have not committed any error in interferingwith the order of appointment of the petitioner on the post of Panchayat Karmi . Taking methrough the findings in this regard recorded by the Collector and theCommissioner and the reasons given by them indicating that appointment ofrespondent No.5 on the post of Panchayat Karmi is not terminated, Smt . Shobhana Koshta sought fordismissal of this writ petition. 7.Learned counsel appearing for the remaining respondents also submitted onsimilar lines. 8.I have heard learned counsel for the parties and perused the records. 9-If the orders of appointment of respondent No.5 is taken note of, it would beseen that in the order-dated 6.11.2007 -Annexure P/2, the Collector has orderedfor appointment of Shri Rohit Singh Parmar not only on the post of Panchayat Karmi , but also on thepost of Panchayat Secretary. The order - Annexure P/2indicates that it is a dual appointment of respondent No.5 on the post of Panchayat Karmi so also on thepost of Panchayat Secretary. At this stage it wouldbe appropriate to take note of certain provisions of the Adhiniyam of 1993. The order - Annexure P/2indicates that it is a dual appointment of respondent No.5 on the post of Panchayat Karmi so also on thepost of Panchayat Secretary. At this stage it wouldbe appropriate to take note of certain provisions of the Adhiniyam of 1993. Section 69 of the Adhiniyam of 1993contemplates a provision for appointment of Secretary and CEOs to the Gram Panchayat . The power to appoint a Secretary to the Gram Panchayat under this section is conferred on the StateGovernment or the authorized officer i.e ....Collector.Section 70 contemplates a provision for appointment of various officers andservants of the Panchayat and the power to makeappointment under section 70 is conferred on the Panchayat subject to approval of the prescribed authority. It is, therefore, clear thatfor the purpose of appointing a Panchayat Karmi , the Panchayat is empoweredto proceed and take action on the basis of the powers conferred under section70 and in the matter of appointment of Panchayat Secretary, the procedure is contemplated under section 69 and the powerconferred on the Collector has to be exercised. In this regard, certainprinciples laid down by a Bench of this Court in the case of Ashok Kumar Kaurav Vs. State ofMP and others, 1992 (2) MPLJ 729, may be taken note of. 10-After taking note of the provisions of sections 69 and 70 of the Adhiniyam of 1993, the learned Judge in the aforesaid casehas held that both sections 69 and 70 operate on different spheres. Section 69is in relation to appointment of Panchayat Secretarywhereas section 70 is in relation to appointment of various officers andservants of the Panchayat . The learned Judge hasconsidered the effect and it is found that the Panchayat Secretary is appointed by the Collector by virtue of the powers conferred uponhim being the prescribed authority under section 69(1) and the power to appointa Panchayat Karmi isconferred on the Gram Panchayat by virtue of a Schemeformulated for appointment of Panchayat Karmi under section 70. It is held by learned Judge that a Panchayat Karmi appointed underthe Scheme formulated under section 70 does not acquire the status of aSecretary of the Panchayat under section 69(1) unlessspecifically appointed by the competent authority under this provision. It is held by learned Judge that a Panchayat Karmi appointed underthe Scheme formulated under section 70 does not acquire the status of aSecretary of the Panchayat under section 69(1) unlessspecifically appointed by the competent authority under this provision. In thisregard the following observations made by the learned Judge may be taken noteof: "From the provisions in sections 69 and 70 of the MP Panchayat Raj Adhiniyam it is noticedthat both sections act in distinct spheres; first in relation to theappointment of Panchayat Secretary while the secondin relation to the appointment of other officers and servants of the Panchayat . Section 69 of the Adhiniyam provides for appointment of a Secretary only by State Government or thePrescribed Authority. Section 69(1) does not grant any power to leave thematter of appointment as Secretary in the hands of any authority other than theprescribed authority or State Government. The Panchayat Karmi Yojna virtuallytransfers this power to the Gram Panchayat asappointment of Panchayat Karmi is made by Gram Panchayat and by deeming provisionintroduced in the scheme. Panchayat Karmi is appointed as Secretary. The Panchayat Karmi Yojna has not beennotified in the Gazette and, therefore, the Gram Panchayat cannot act as a prescribed authority and by such general executiveinstructions, the requirement of making appointment by the State Government orthe prescribed authority under section 69 cannot be circumvented. A Panchayat Karmi appointed underthe scheme does not acquire the status of Secretary of the Panchayat under section 69(1) unless specifically appointed by a competent authorityunder the provision." (Emphasissupplied) 11.From the aforesaid principle, it is clear that both the post of Panchayat Karmi and Panchayat Secretary are different. A Panchayat Secretary is appointed by the Collector by virtue of the powers conferred uponhim under section 69 and a Panchayat Karmi is appointed by the Panchayat as per the scheme notified by the State Government. However, a furtherprovision is contemplated under section 86, where power is given to the Collectorto take action, if the Panchayat fails to perform anyduties imposed upon it or under the Adhiniyam of1993. It is, therefore, clear that if the Panchayat does not appointment on the post of Panchayat Karmi in accordance to the scheme or the provisions of theAct, the prescribed authority namely, the Collector, is entitled to exercisepowers under section 86(1) and appoint a Panchayat Karmi . It is, therefore, clear that if the Panchayat does not appointment on the post of Panchayat Karmi in accordance to the scheme or the provisions of theAct, the prescribed authority namely, the Collector, is entitled to exercisepowers under section 86(1) and appoint a Panchayat Karmi . 12.If the order of appointment of respondent No.5 in this regard issued by theCollector is taken note of, it would be seen that the Gram Panchayat was instructed to make appointment on the post of Panchayat Karmi and when the Gram Panchayat did not make appointment of Panchayat Karmi within the stipulated period then on the basis of theapplications received by the Panchayat and on merit Shri Rohit Singh Parmar - respondent No.5 was appointed as a Panchayat Karmi by the Collectorand this appointment of respondent No.5 as a Panchayat Karmi by the Collector is made in exercise of thepowers conferred by the Collector under section 86(1). After appointingrespondent No.5 as a Panchayat Karmi in this manner, the Collector further exercised the powers under section 69(1)and appointed respondent No.5 as a Panchayat Secretary. 13.It is, therefore, clear from a perusal of the order-dated 6.11.2007 -AnnexureP/2 that this appointment is in fact appointment of respondent No.5 on twodifferent posts: one to the post of Panchayat Karmi and another to the post of Panchayat Secretary. Both these appointments are different. Thereafter, when thesubsequent order was passed by the Collector on 26.11.2007 -Annexure P/3, theorder in verbatim reads as under: xxxxxxxxxxxxxxxxxxxxx Aperusal of this order indicates that in this order the Collector has notterminated the appointment of respondent No.5 on the post of Panchayat Karmi , the terminationis only with regard to his appointment as a Panchayat Secretary ordered by the Collector under section 69(1). That being so, when Shri Rohit Singh Parmar - respondent No.5 challenged this order - AnnexureP/3 in the proceedings before the Collector, the Minister of the Departmentconcerned and also before this Court in W.PNo.5844/2009, the questionconsidered in these proceedings were only with regard to termination of respondentNo.5's appointment on the post of Panchayat Secretary. That being so, when Shri Rohit Singh Parmar - respondent No.5 challenged this order - AnnexureP/3 in the proceedings before the Collector, the Minister of the Departmentconcerned and also before this Court in W.PNo.5844/2009, the questionconsidered in these proceedings were only with regard to termination of respondentNo.5's appointment on the post of Panchayat Secretary. If the orders in this regard - Annexures P/4, P/5 and P/6 are taken note of and if the facts as are narrated by thisCourt on 22.6.2009, in W.P.No.5844/2009, are taken note of, it is clear thatthe challenge made by respondent No.5 in these proceedings was to the orderpassed by the Collector terminating his appointment as a Panchayat Secretary under section 69(1). What was terminated- by the Collector vide order- Annexure P/3 was only the appointment of respondent No.5 on the post of Panchayat Secretary and not oh the post of Panchayat Karmi . That being so,the Collector and the Commissioner are correct in contending that theappointment of respondent No.5 on the post of Panchayat Karmi was never terminated and, therefore, inappointing petitioner as a Panchayat Karmi vide Annexure P/7, the Panchayat has committed an error because the post of Panchayat Karmi was not vacant and the Collector having notified andappointed petitioner as Panchayat Secretary videAnnexure P/8 dated 17.11.2009 has committed a mistake in as much as the Panchayat and the CEO of the Janpad Panchayat did not bring these facts to the notice ofthe Collector. Accordingly, if the orders passed impugned in this writ petition- Annexure P/9 and P/ ll are taken note of, it wouldbe seen that both the Collector and the Commissioner have recorded concurrentfindings to the effect that the appointment of respondent No.5 on the post of Panchayat Karmi was neverterminated and without terminating this appointment petitioner could not beappointed as a Panchayat Karmi .This finding in the considered view of this Court is a reasonable and properfinding, which is passed in accordance to law and the same does not warrant anyconsideration. 14.Merely because the appointment of respondent No.5 on the post of Panchayat Secretary is terminated by the Collector videAnnexure P/ 3, it cannot be assumed that hisappointment on the post of Panchayat Karmi is also terminated. 14.Merely because the appointment of respondent No.5 on the post of Panchayat Secretary is terminated by the Collector videAnnexure P/ 3, it cannot be assumed that hisappointment on the post of Panchayat Karmi is also terminated. Appointment to the post of Panchayat Secretary and Panchayat Karmi as indicated hereinabove are made by differentauthorities and as these are different posts, there has to be separate ordersterminating the services from both the posts differently. In this case, there isno order passed by the competent authority terminating the services ofrespondent No.5 from the post of Panchayat Karmi and, therefore, in interfering in the matter theCommissioner and the Collector have not committed any error, which warrantsinterference now by this Court. 15.Accordingly, the submission made in this regard by Shri R.K. Samaiya , learned counsel for the petitioner,cannot be accepted. 16.As far as the objection raised by Shri R.K. Samaiya with regard to jurisdiction of the Collector toreview his own order is concerned, it is clear that the Collector has notreviewed any of his orders in the matter of appointment or otherwise ofrespondent No.5 on the post of Panchayat Karmi . The order - Annexure P/3 as already indicatedhereinabove is not an order terminating the services of respondent No.5 fromthe post of Panchayat Karmi and, therefore, there is no question of the Collector reviewing the order. Theorder - Annexure P/3 only terminates the appointment of respondent No.5 fromthe post of Panchayat Secretary and this order hasnot been reviewed by the Collector. Accordingly, it is not a case where theCollector has interfered in the matter by reviewing his earlier order. As faras Annexure P/8 dated 17.11.2009 passed by the Collector conferring the powersof Panchayat Secretary on the petitioner isconcerned, once appointment of the petitioner on the post of Panchayat Karmi itself is by theGram Panchayat is found to be unsustainable, theappointment of the petitioner on the post of Panchayat Secretary by virtue of his appointment as a Panchayat Karmi would also be adversely affected and if theCollector in ignorance of the facts had notified the petitioner as a Panchayat Secretary, it cannot be said that the Collectorhas acted in an illegal manner or without jurisdiction. It is case where theauthorities concerned have proceeded in accordance with law and in doing so, this Court does not find any error warrantinginterference. 17.Accordingly, finding no merit in the claim made by the petitioner, this writpetition is dismissed.