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Madhya Pradesh High Court · body

2011 DIGILAW 813 (MP)

Kalpnath Mishra v. State of M. P.

2011-07-26

K.K.TRIVEDI

body2011
ORDER K.K. Trivedi, J. 1. The petitioner by filing this petition under Article 226 of the Constitution of India has challenged the validity of order dated 22.11.2010 contained in Annx. P/9, passed by the respondent Collector, Rewa, by which the order passed by the Sub Divisional Officer Hanumana, has been set aside and the appeal filed by the respondent No.4 is allowed, the order of appointment of petitioner as Panchayat Karmi so issued, has been set aside and the matter is remitted back to the respondent Gram Panchayat for making appointment of a Panchayat Karmi, in accordance to the provisions of Panchayat Karmi Scheme as also the circular issued by the State Government from time to time. 2. It is the contention of the petitioner that such an order could not have been passed as the appeal filed by the respondent No. 4 against the order of the appointment of petitioner was found to be hopelessly barred by limitation and the said appeal was rightly dismissed by order dated 16.7.2009 (Annx. P/5) under the provisions of Rule 4 and 7 of the Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995 (hereinafter referred to as Rules for brevity). It is contended by the petitioner that the Collector Rewa has not considered the aspect that the accrued right of the petitioner could not have been taken away; secondly, the entire consideration was, as if, the selection of a Panchayat Karmi was to be done on the basis of merits only and, therefore, such findings given by the appellate authority the respondent Collector are perverse. Therefore, the order is bad in law and is liable to be quashed. 3. The present writ petition was entertained, the notices were issued to the respondents and an interim protection was granted to the petitioner on 7.12.2010 by this Court. Subsequently, the order of interim stay granted by this Court was vacated vide order dated 2.2.2011. The respondents have filed their return. The respondents No. 1 to 3 have contended that as per the Scheme, the selection was required to be made only on the basis of merit obtaining on account of marks secured in the qualifying examination and, as such, the resolution passed by the Gram Panchayat selecting a less meritorious person was not correct. The respondents have filed their return. The respondents No. 1 to 3 have contended that as per the Scheme, the selection was required to be made only on the basis of merit obtaining on account of marks secured in the qualifying examination and, as such, the resolution passed by the Gram Panchayat selecting a less meritorious person was not correct. Accordingly, the orders were rightly passed by the appellate authority setting aside such an action and directing appointment of a person strictly on the basis of merit. 4. The respondent No.4, vehemently, contended by filing the return that the entire petition of the petitioner was misconceived and based on misleading statements. It is contended by the respondent No. 4 that as per the merit of the respondent No. 4, he alone was to be appointed. Such instructions were already issued vide memo dated 27.1.2006 (R/4-II filed along with the return of the respondent No. 4). It is contended that such instructions were reiterated vide memo dated 13.8.2007 (R/4-III filed along with the return of the respondent No. 4). It is the contention that since the appeal was filed, it was to be considered appropriately, but the same was dismissed by the Sub Divisional Officer on the ground of delay in filing the appeal, therefore, he was required to approach the Court of Collector, Rewa, from where an appropriate order was passed. The objection with respect to the maintainability of the appeal was also considered and rejected. That being so, it is contended that there was no wrong committed in setting aside the order of illegal appointment of petitioner. 5. I have heard the learned counsels for the parties at length and perused the record. 6. The factual aspects which have been pleaded are to be considered in the light of the Scheme made by the State Government Much has been debated on the basis of the Scheme made by the State Government and, therefore, it is apposite to examine the said Scheme, interpret its true application and the purposes and then to examine whether a particular act done by the Gram Panchayat was correct or not. 7. The State Legislature while enacting Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the 'Act' for short), has categorically provided constitution of a Gram Panchayat. 7. The State Legislature while enacting Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the 'Act' for short), has categorically provided constitution of a Gram Panchayat. For effective working of a Gram Panchayat, the provisions are made under Section 70 of the Act, where it is provided that appointment of employees for the purposes of discharging the functions of the Gram Panchayat will be made in the manner prescribed. Section 69 (1) of the Act specifically deals with the notification of a Secretary of the Gram Panchayat. The State Government in exercise of powers to prescribe procedure for making appointment of the employees for the Gram Panchayat, has made a Scheme known as Panchayat Karmi Yozna (hereinafter referred to as the Scheme for short) and circulated the same vide memo dated 12.9.1995. The Scheme as has been made by the State Government contemplates that a Panchayat Karmi will be appointed by a Gram Panchayat only for the purposes of his notification as a Secretary of the Gram Panchayat. The eligibility conditions have been mentioned in the said Scheme. The Scheme further contemplates procedure to be followed for making appointment of Panchayai Karmis. It is categorically provided that a Panchayat Karmi will be appointed on selection by the Gram Panchayat. However, the original Scheme nowhere prescribes that the selection of a candidate for appointment as Panchayat Karmi is to be based on merit (emphasis supplied). It is seen from the Scheme that such appointments are according to the choice of the Gram Panchayat because a Secretary of the Gram Panchayat is required to be a person of the confidence of the Gram Panchayat. The State Government has also made the Rules in the year 1999 prescribing the statutory duties which a Secretary of the Gram Panchayat is required to discharge. Therefore, it was not originally provided in the Scheme that a Secretary should be appointed only on the basis of merit which was to be assessed on the basis of marks obtained in the qualifying examination. The educational qualification prescribed for appointment as Panchayat Karmi is 10+2 minimum. Therefore, it cannot be said that right from the inception of the Scheme, the Panchayat Karmis were to be selected and appointed only on the basis of merit which was to be calculated on the basis of marks obtained in the qualifying examination. 8. The educational qualification prescribed for appointment as Panchayat Karmi is 10+2 minimum. Therefore, it cannot be said that right from the inception of the Scheme, the Panchayat Karmis were to be selected and appointed only on the basis of merit which was to be calculated on the basis of marks obtained in the qualifying examination. 8. The State Government has issued the instructions from time to time with respect to the appointment of Panchayat Karmis, their conditions of service and their removal from the post. However, in none of the said circulars the State Government has contemplated mat the appointment of a Panchayat Karmi should be based on merits. For the first time, when it was seen by the State that in many places appointment of Panchayat Karmis were not made and the Schemes of the State Government were not being implemented because of want of a Panchayat Secretary, a circular was issued on 27.1.2006. A perusal of this circular will make it clear that it has two parts. The first part deals with the instructions which were required to be issued under Section 86 (1) of the Act to all such Gram Panchayats where the Panchayat Karmis were not appointed. The said part specifically laid down that the Collector of the district concerned was required to issue the direction to the Sarpanch of the concerning Gram Panchayat where the vacancy of the Panchayat Karmi was there to make appointment of a Panchayat Karmi within a period of thirty days. The second part of the circular was relating to the provisions contained in Section 86(2) of the Act. It was directed under this clause that where even after giving direction under Section 86 (1) of the Act, if, the direction is not complied with within the time stipulated, then in that condition, the Chief Executive Officer of the concerning Janpad Panchayat was required to make the appointment of a Panchayat Karmi. For the said purposes, the qualifications of such Panchayat Karmi were specifically mentioned. The procedure which was required to be followed, was also prescribed and in this part of circular it was said that the selection of a Panchayat Karmi was to be made only on the basis of marks obtained in the qualifying examination. For the said purposes, the qualifications of such Panchayat Karmi were specifically mentioned. The procedure which was required to be followed, was also prescribed and in this part of circular it was said that the selection of a Panchayat Karmi was to be made only on the basis of marks obtained in the qualifying examination. Thus, for the first time, this circular dated 27.1.2006 was issued prescribing a procedure of merit selection of a Panchayat Karmi on the basis of marks obtained in the qualifying examination. In this circular, it was further very specifically said that in case of future vacancies in any of the Gram Panchayat on the post of Panchayat Karmi, the said procedure will be followed. 9. The plain and simple reading of this circular makes it clear that the instructions as contained with respect to merit selection were restricted only when the procedure was to be adopted exercising the power in sub-section (2) of Section 86 of the Act. For the purposes of interpreting the said circular in appropriate manner, it will be proper to reproduce the provisions of Section 86 as under :- 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. 10. Thus, from the reading of the aforesaid Section, it is clear that the Section itself has two parts. 10. Thus, from the reading of the aforesaid Section, it is clear that the Section itself has two parts. First part is specifically for the compliance of direction by the Panchayats and the second part is where even after giving a direction, the Panchayats failed to discharge their duties and comply with the direction. Then in that case, the competent authority is required to discharge the function for which direction is issued to the Gram Panchayat as if the said authority is exercising the power of the Panchayats. Meaning thereby, if the Panchayat complied with the directions, there is no application of sub-section (2) of Section 86 of the Act. There is no requirement of exercising that power in such circumstances. This being so, the circular dated 27.1.2006 is to be read as a whole whether such a prescription of merit selection made applicable for selection which are to be made in exercise of power under sub-section (2) of Section 86 of the Act, is applicable for the selection which are to be made by the Gram Panchayat under the directions issued in accordance to the provisions of Section 86(1) of the Act. 11. The intention of the Legislature is clear from the reading of the Section itself. Had it been so that the Legislature was of the intention to direct doing of certain work of the Gram Panchayat straightway by the concerning authorities of the State Department, it would not have provided sub-section (1) of Section 86 of the Act. This itself is enough to indicate that the intention of the Legislature was to command the Panchayats concerned to perform certain duties under the Act for which directions are required to be issued by the competent authority of the State department. On failure of discharge of such duties or functions by the Panchayats even after issuance of the directions under sub-section (1) of Section 86 of the Act, then only the said functions are required to be performed by the State authorities under sub-section (2) of Section 86 of the Act exercising the power of the Panchayat. On failure of discharge of such duties or functions by the Panchayats even after issuance of the directions under sub-section (1) of Section 86 of the Act, then only the said functions are required to be performed by the State authorities under sub-section (2) of Section 86 of the Act exercising the power of the Panchayat. This makes it clear that if Panchayats are required to do the work, they will do it in accordance to the original instructions issued and, therefore, by virtue of circular dated 27.1.2006, only this much was directed that in case of failure on the part of the Gram Panchayat, if the appointment of Panchayat Karmi is not made, within the time stipulated, a Panchayat Karmi will be appointed by a concerning departmental authorities in exercise of powers conferred under sub-section (2) of Section 86 of the Act, exercising the said powers and duties of the Panchayat concerned, only on the basis of merits of the candidate obtaining on the basis of marks secured in the qualifying examination. 12. This reasoning is further fortified from the fact that a circular was issued on 13.8.2007 by the State Government and certain queries raised in this respect pursuance to the circular dated 27.1.2006 were clarified. This was categorically said that the Panchayat Karmis if are not appointed by the Gram Panchayat even after issuance of the directions by the concerning Collector of the district, the appointment of Panchayat Karmi will be made by the departmental authorities. It was further made clear by this circular that this merit selection was only when the appointment was to be made by the departmental authorities. It was very categorically said in this circular that the vacancies which were available till that time were to be filled in by the procedure laid down and in such circumstances, the merit selection will be made. It was further said that where already the appointment of Panchayat Karmis have been done, the conditions as mentioned in the circular dated 13.8.2007 would not be applicable. It was further said that where already the appointment of Panchayat Karmis have been done, the conditions as mentioned in the circular dated 13.8.2007 would not be applicable. Thus, it is specifically provided in this circular that merit selection which was required to be followed in the selection and appointment of Panchayat Karmi by the Gram Panchayat was prospective from the date the circular was issued and it was not to be adhered to the selections which were already done or which were initiated before issuance of the aforesaid circular. 13. After examining the legal position of instructions issued by the State authorities, their application, the factual aspects are to be considered. It is seen from the record that the Collector Panchayat issued instructions on 13.7.2007 to the Sarpanch of the Gram Panchayat Khaira, for making appointment of a Panchayat Karmi. It is also seen that the advertisement was issued by the Gram Panchayat inviting application for appointment of Panchayat Karmis on 18.7.2007 (Annx.R/4-I filed along with the return of respondent No. 4). The last date for receiving the application was 2.8.2007. It was categorically said that the candidate should be the local resident of the Gram Panchayat and should have obtained minimum education of 10+2. He should not be a relative of the office bearer of the Gram Panchayat and the application should be made up to 5:00 P.M. on 2.8.2007. Pursuance to this, the recruitment process was started on 18.7.2007. 14. It is the settled position of law that the recruitment process is always started by issuing the advertisement. The law in this respect is well settled by the Apex Court in many cases. This being so, all applications which were received, were to be considered for which the agenda was prepared on 3.8.2007 by the Gram Panchayat and the meeting was called on 11.8.2007. In the said meeting, selection was made and after considering the candidature of the petitioner and the respondent No. 4 along with others, the petitioner was selected for appointment. The resolution was passed to this effect and pursuance to this the intimation was sent. One person was put in the waiting list. The petitioner was issued an order of appointment on 11.8.2007 (Annx. P/3) and he joined the services within the time stipulated. The resolution was passed to this effect and pursuance to this the intimation was sent. One person was put in the waiting list. The petitioner was issued an order of appointment on 11.8.2007 (Annx. P/3) and he joined the services within the time stipulated. Thus, in fact, the appointment of petitioner as Panchayat Karmi was done before 13.8.2007 the date when the circular was issued by the State Government prescribing selection of a Panchayat Karmi on merit basis. 15. The appeal against such an order was filed by the respondent No. 4 on 22.12.2007. The appeal as was required to be filed under the Rules was barred by limitation. The statutory rule specifically prescribes a limitation for filing of such an appeal. Rule 4 of the Rules, categorically prescribes that no appeal shall lie to the appellate authority under Rule 3 after the expiration of thirty days from the date of the order against which the appeal is made. Sub-rule (2) of Rule 4 of the Rules, gives power to the appellate authority to admit an appeal after the expiry of thirty days if it is satisfied that there was sufficient cause for not presenting the appeal within the said period of limitation prescribed. The consequence of non-compliance of the provision aforesaid would mean that the appeal was not to be accepted at all unless there was an application for condo nation of delay. Rule 7 of the Rules, specifically prescribes that an appeal or application for revision under the Rules shall be in the form of memorandum and shall be accompanied by a certified copy of such order. It was found by the appellate authority, the Sub Divisional Officer, Hanumana, that not only the appeal filed by the respondent No. 4 was hopelessly barred by limitation, it being filed much after the expiry of the limitation prescribed for filing of the said appeal, there was non-compliance of provision of Rule 7 of the Rules, inasmuch as, no copy of the order was appended with the memo of appeal The appellate authority, thus, reached to the conclusion that the appeal of the respondent No. 4 was not maintainable and the same was, thus, dismissed on 16.7.2009 (Annx. P/5 to the writ petition). 16. The respondent No. 4 preferred an appeal against the order of the Sub Divisional Officer. P/5 to the writ petition). 16. The respondent No. 4 preferred an appeal against the order of the Sub Divisional Officer. It was contended that the Sub Divisional Officer has not rightly examined the provisions. It was pointed out that the appeal preferred by the respondent No. 4 was required to be considered on merits and since the order of appointment of the petitioner was not in conformity with the instructions issued, the Sub Divisional Officer, the appellate authority was required to hold an enquiry on merits and set aside the order of appointment of the petitioner. It was contended that there were certain enquiries conducted, the reports were given and only on the basis of such a report, it was found by the authorities that the selection of the petitioner was erroneous and only after these enquiries and getting report of certain enquiry whether any such meeting was held or not, the respondent No. 4 has filed the appeal, therefore, the same was not to be dismissed on limitation only. On these ground, it was contended before the Collector that the order passed by the Sub Divisional Officer was bad in law. Thus, it is contended that the revisional authority rightly passed the order and set aside the illegal order of the Sub Divisional Officer by the impugned order. 17. The learned counsel for the petitioner has, vehemently, contended that since the appeal of the respondent No. 4 was dismissed on the ground of limitation as also for non-compliance of the statutory provisions, the right had accrued to the petitioner and the said right should not have been taken away in the manner it has been by the revisional authority. It is contended that an objection was raised with respect to the maintainability of a second appeal said to be filed before the Collector Rewa, as no second appeal is provided under the Rules, yet such an objection was rejected. The revision preferred before the Additional Commissioner was also dismissed summarily and this has resulted in passing of the impugned order on 22.11.2010. The learned counsel for the petitioner has put his reliance in the case of Sneh Gupta Vs. The revision preferred before the Additional Commissioner was also dismissed summarily and this has resulted in passing of the impugned order on 22.11.2010. The learned counsel for the petitioner has put his reliance in the case of Sneh Gupta Vs. Devi Sarup and others [ (2009) 6 SCC 194 ] and has contended that since a right had accrued to the petitioner on account of dismissal of the appeal of respondent No.4 on the ground of non-compliance of the statutory provision of Rules, such right of the petitioner was not to be taken away and, as such, the order passed by the Collector is bad in law. 18. Per contra, it is contended by the learned counsel for the respondent No. 4 putting reliance in a case of Nisha Bai Vs. State of M.P. and others [ 2008 (1) MPLJ 219 ] that an illegal order of appointment of petitioner is not to be given a stamp of approval by this Court. It is said that since the order of appointment of petitioner was illegal, it being made de hors the Scheme and the instructions of the State Government, it need not be affirmed by this Court by allowing the writ petition. The learned counsel for the respondent No. 4 has further put his reliance in the case of Vishnu Dev Pandey Vs. State of M.P. and others [2008 (4) MPLJ 232] contending that if the resolution was not passed in accordance to the law by the Gram Panchayat, if the instructions of the State Government were violated, if the selection of a Panchayat Karmi was not made on the basis of marks secured in the qualifying examination and if, no merit order was prepared or seen, there was a need to interfere with such a resolution passed by the Gram Panchayat and the consequential order passed on the basis of such a resolution. Even for the said purposes, it is contended vehemently that no appeal is required to be filed and straightway a writ petition under Article 226 of the Constitution of India could have been filed before this Court. Thus, it is contended that the order illegally issued is not required to be given affirmation by this Court. 19. The rival contentions of the learned counsel for parties are considered. Thus, it is contended that the order illegally issued is not required to be given affirmation by this Court. 19. The rival contentions of the learned counsel for parties are considered. Firstly, it is to be seen whether there was requirement of a merit selection on the date when the selection of the petitioner was held by the Panchayat or not. In the considered opinion of this Court, circular dated 13.8.2007 being prospective in nature, could not be read with retrospective effect for a selection which was made prior to coming into force of the said circular. Secondly, there was no procedure prescribed for the Gram Panchayat to make selection of a Panchayat Karmi only on the basis of merit prior to 13.8.2007. The Scheme of merit selection of a Panchayat Karmi as given in the circular dated 27.1.2006 was not applicable in the case of selection by the Gram Panchayat. Thus, it is incorrect to say that the selection of the petitioner was not justified as he was less meritorious than the respondent No. 4. In view of this, the cases cited by the respondent No. 4 are distinguishable and are not applicable in the present case. By no stretch of imagination, it can be said that the order of appointment of the petitioner was illegal and, therefore, this Court is not required to give a stamp of approval to such an illegal order of appointment. The case relied on by the petitioner in this respect, the law laid down by this Court in the case of Nisha Bai (supra) is not applicable in the facts and circumstances of this case. Similarly the law laid down by the Single Bench of this Court in the case of Vishnu Dev Pandey (supra) is also not applicable in the present case. 20. The debates with respect to the availability of appeal or revision against a resolution of the Gram Panchayat has taken place in various matters. One of such cases was considered by this Court when a reference was made. In the case of Sagar Machhuwa Sahkari Samiti, Seoni, Vs. Chief Executive Officer, Janpad Panchayat Seoni and another [ 2008 (2) MPLJ 194 ] and in the case of Devi Dayal Raikwar Vs. One of such cases was considered by this Court when a reference was made. In the case of Sagar Machhuwa Sahkari Samiti, Seoni, Vs. Chief Executive Officer, Janpad Panchayat Seoni and another [ 2008 (2) MPLJ 194 ] and in the case of Devi Dayal Raikwar Vs. State of M.P. [ 2008 (4) MPLJ 647 ], the Division Bench of this Court has taken a constant view that the appeal or revision will not he against the resolution of the Gram Panchayat under the provisions of Section 91 of the Act read with Rule 3 or 5 of the Rules of 1995. It is categorically held that only the order of appointment of a Panchayat Karmi or order issued in consequence to the passing of a resolution alone is challengeable under the aforesaid provisions. Of course, the validity of the resolution is required to be examined and in case, it is found that such a resolution is improper, it is not to be set aside or disturbed, but the consequential order is required to be set aside. The Collector Rewa, has utterly failed to see that in view of the specific law laid down by this Court in the aforesaid cases, he was required to examine whether the appeal against the order of appointment of petitioner was rightly filed in terms of the provisions of the Rules or not and if, it is found that the appeal was not presented in accordance to the provisions of the Rules, the order of Sub Divisional Officer was not required to be interfered with. On the other hand, the Collector has travelled beyond his jurisdiction, examined the validity of resolution, tested it only on the strength of circular dated 13.8.2007 and reached to the conclusion that since the appointment of Panchayat Karmi was required to be made on the basis of merits in terms of the aforesaid circular, but the same was not done by the Gram Panchayat by its resolution, and the order of appointment was issued in favor of petitioner, therefore, the said action was bad in law and in view of these findings interfered with the order of the Sub Divisional Officer and set aside the same. This could not have been done, simply because the respondent Collector was required to examine all aspects, applicability of a particular circular, the manner of initiation of the proceedings for appointment and then only to examine whether within the limits or the provisions of the Rules, the appeal was preferred by the respondent No. 4 or not and whether such an aspect was rightly considered by the Sub Divisional Officer or not. The entire findings of the Collector Rewa are, thus, perverse and cannot be given any stamp of approval by this Court. 21. Consequently, the writ petition is allowed, the impugned order dated 22.11.2010 (Annx. P/9 to the writ petition) passed by the Collector, Rewa, is, hereby quashed. The respondents are directed to reinstate the petitioner on his post of Panchayat Karmi, notify him as Secretary of the Gram Panchayat and allow him to continue on his post. 22. In the result, the writ petition stands allowed, but without order as to costs.