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2011 DIGILAW 822 (MP)

Banwarilal v. State of M. P.

2011-07-27

K.K.TRIVEDI

body2011
ORDER K.K. Trivedi, J. 1. By this writ petition under Article 226 of the Constitution of India, the Petitioner has called in question the order dated 25.01.2008 passed by the Sub Divisional Officer, Pushprajgarh, District Anooppur and the order dated 16.11.2009 passed by the Collector, Anooppur, alleging that the Sub Divisional Officer having no jurisdiction to set aside the resolution of the Gram Panchayat has wrongly allowed the complaint and set aside resolution of Gram Panchayat and the appeal filed against such an order has been dismissed, therefore, the Petitioner is required to file this writ petition. The reliefs claimed are that the Petitioner, who has rightly been selected and appointed on the post of Panchayat Karmi, be permitted to continue on his post after the quashment of the impugned orders. 2. The facts giving rise in the present writ petition in brief are that on 10.08.2007 a resolution was passed by the Gram Panchayat and Petitioner was selected for his appointment as Panchayat Karmi. The said resolution was passed considering the candidature of the Petitioner as also the other persons, who made applications pursuant to the advertisement issued by the concerned Gram Panchayat. 'A complaint was made before the Sub Divisional Officer that such a resolution was illegally passed and, therefore, the same was not to be implemented. However, the fact remains that the Petitioner was already appointed vide order dated 10.08.2007 and he joined on his post on 13.08.2007 and started working. The Sub Divisional Officer, Pushprajgarh passed an order on 25.01.2008 considering the complaint made and holding that the selection of the Petitioner was not in accordance to the instructions issued by the State Government on 13.08.2007, therefore, he set aside the resolution dated 10.08.2007 and remitted back the matter to the Gram Panchayat for making selection afresh. 3. An appeal was preferred by the Petitioner against this order before the Collector. However, even after calling the records, the appeal of the Petitioner was not heard on the question of grant of interim relief, therefore, he was required to file a writ petition before this Court being W.P. No. 7794/2008. The said writ petition was finally disposed of vide order dated 09.07.2008 and this Court granted a direction to maintain status quo till consideration of the application of the Petitioner for grant of stay. The said writ petition was finally disposed of vide order dated 09.07.2008 and this Court granted a direction to maintain status quo till consideration of the application of the Petitioner for grant of stay. The Petitioner was thus notified as Secretary of the Gram Panchayat pursuant to his order of appointment and was permitted to work on his post. Later on the appeal of the Petitioner has been dismissed holding that the Sub Divisional Officer has rightly passed the order. 4. The writ petition filed before this Court was entertained and an interim protection was granted to the Petitioner on 15.12.2009. The Respondents have entered appearance and have filed their response. The Respondents Nos. 1 and 2 have simply said that the circular was issued by the State Government categorically directing that the selection of Panchayat Karmi was to be made only on the basis of merit obtained on the basis of marks secured in the qualifying examination. The Petitioner could not have been selected in view of this instruction and, therefore, there was nothing wrong committed by the Sub Divisional Officer in setting aside illegal resolution of the Gram Panchayat. The Respondent No. 3 has filed similar return. The Respondent No. 5 has filed the return contending that illegal selection of Petitioner was done de-hors instructions of the State Government and relying on various decisions of this Court it has been said that selection of Petitioner as Panchayat Karmi was bad in law. Thus, it is contended that right action was taken, orders were passed and, therefore, there was no need to interfere in the orders passed by the competent authority by this Court exercising extraordinary power of judicial review under Article 226 of Constitution of India. 5. Heard the learned Counsel for the parties and perused the records. 6. The order of Sub Divisional Officer being contrary to the provisions of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (herein after referred to as Act) and the rules, cannot be sustained. The Act confers powers under Section 85 on the competent authority to suspend a resolution of a Panchayat. If a resolution is passed contrary to the law, the same can be suspended. Sub-section (2) of Section 85 of the Act aforesaid prescribes that the order of suspension is required to be affirmed by the next competent authority. The Act confers powers under Section 85 on the competent authority to suspend a resolution of a Panchayat. If a resolution is passed contrary to the law, the same can be suspended. Sub-section (2) of Section 85 of the Act aforesaid prescribes that the order of suspension is required to be affirmed by the next competent authority. Once the order is affirmed, the resolution is not to be acted upon and it is to be pocketed for all time to come. In no case the resolution of the Gram Panchayat can be set aside or cancelled in exercise of power under Section 85 of the Act. 7. Similarly there is no provision made under Section 91 of the Act or the Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995 (herein after referred to as Rules) to file an appeal or revision against the resolution of the Gram Panchayat. The Division Bench of this Court has categorically held in the case of Sagar Machhua Sahkari Samiti, Seoni v. Chief Executive Officer, Janpad Panchayat, Seoni and Anr. 2008 (2) MPLJ 194 that a resolution of the Gram Panchayat is neither appealable or revisable. This view has been further affirmed in the decision of Division Bench of this Court in the case of Devi Dayal Raikwar v. State of M.P. and Ors. 2008 (4) MPLJ 647 . The appeal against the order of appointment alone is required to be filed and while examining the said appeal, the validity of the resolution is also examined by the appellate authority. If it is found that the resolution was illegally passed, the said resolution is not to be touched but the consequential order of appointment is liable to be set aside. At any rate the Sub Divisional Officer was hot competent to set aside the resolution passed by the Gram Panchayat. From the wordings of the order impugned contained in Annexure P-5. it is clear that the resolution of the Gram Panchayat has been cancelled, therefore, the order dated 25.01.2008 cannot be given stamp of approval by this Court. In the appeal filed by the Petitioner, the Collector, Anooppur, has not considered this aspect. Both the authorities have traveled beyond their jurisdiction inasmuch as they considered the method of selection as was indicated by the circular dated 13.08.2007. In the appeal filed by the Petitioner, the Collector, Anooppur, has not considered this aspect. Both the authorities have traveled beyond their jurisdiction inasmuch as they considered the method of selection as was indicated by the circular dated 13.08.2007. The selection of a candidate for appointment on the post of Panchayat Karmi on the basis of merit on the basis of marks obtained in the qualifying examination was for the first time introduced by the State Government by circular dated 13.08.2007. The said circular was prospective and if any selection prior to the coming into force of said circular was held by the Gram Panchayat, it was not open to the authorities to say that such a selection was illegal in any manner. Considering the aforesaid situation and right interpretation of the circular of the State Government, this Court in the case of W.P. No. 17319/2010 Kalpnath Mishra v. State of M.P. and Ors., decided on 26.07.2011, has categorically held that such consideration of appeal on wrong interpretation of the circular of the State Government cannot be given stamp of approval by this Court. Thus, it is clear that while the appeal/complaint of the Respondent No. 5 was being considered by the Sub Divisional Officer, he also made application of a circular, which was not applicable in the matter of appointment of the Petitioner as on the date when the appointment of the Petitioner was made, the said circular was not in force at all and the same mistake was committed by the Collector in not examining the applicability of a particular circular on the date of selection of the Petitioner. In view of aforesaid, this Court is of the considered view that such orders of the appellate authority and revisional authority are bad in law and cannot be sustained. 8. In view of the aforesaid, this writ petition deserves to be and is hereby allowed. The impugned order dated 25.01.2008 (Annexure P-5) and the order dated 16.11.2009 (Annexure P-22) are quashed. The Petitioner be allowed to continue on his post of Panchayat Karmi and Secretary of the Gram Panchayat, Dharkarkala, District Anooppur. 9. The writ petition is accordingly allowed to the extent as indicated herein above but to no order as to costs. Petition allowed.