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Madhya Pradesh High Court · body

2011 DIGILAW 828 (MP)

Mukesh Prasad v. State Of M. P.

2011-07-27

K.K.TRIVEDI

body2011
JUDGMENT ( 1. ) THIS writ petition under Article 226 of the Constitution of India has been filed calling in question the order dated 30-12-2008 (Annexure P-20) by which while allowing the appeal of respondent No. 6, it has been held by the Commissioner, Shahdol Division, Shahdol, that the order passed by the Collector allowing the appeal of the present petitioner is set aside and the appointment of respondent No. 6 is required to be made in terms of the provisions of section 69(1) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as Act). ( 2. ) THE main contentions of the petitioner are that an advertisement was issued for making appointment of Panchayat Karmi by the Gram Panchayat, Karondi, District Anooppur on 9-7-2007. THE last date for filling the forms was mentioned in the said advertisement. However, it appears that the respondent No. 6, who was at the relevant time holding the post of Sarpanch of the very same Gram Panchayat, was also willing to take part for selection on the post of Panchayat Karmi and for that particular object, after giving a notice of resignation from the post, another advertisement was got issued vide Annexure P-8 in which the last date for submitting the application form was fixed on 30-8-2007. It is contended by the petitioner that fraudulently a resolution was said to be passed stating that the resignation of respondent No. 6 is accepted. A resolution was passed for making appointment of persons on the post of Panchayat Karmi and on the basis of such a resolution the respondent No. 6 was said to be selected and an order of appointment was issued. It is further contended that the matter was complained with respect to such illegalities being committed before the Collector, Anooppur, who took the matter in his consideration, issued the orders directing the competent authority to make selection and recommended the right person to be appointed on the post of Panchayat Karmi. Pursuant to this, applications so submitted before the Panchayat were screened, merit list was drawn and recommendations were made for appointment of persons like petitioner. Since such an order was issued by the Collector, Anooppur on 29-5-2008, a writ petition was filed before this Court by the respondent No. 6. Pursuant to this, applications so submitted before the Panchayat were screened, merit list was drawn and recommendations were made for appointment of persons like petitioner. Since such an order was issued by the Collector, Anooppur on 29-5-2008, a writ petition was filed before this Court by the respondent No. 6. Later an appeal was filed before the Commissioner, Shahdol Division by the respondent No. 6 and since such an appeal has been allowed, the petitioner is required to file present writ petition. In view of die aforesaid, the petitioner has claimed the relief of quashing of the order passed by the Commissioner, Shahdol. This Court entertained the writ petition. Notices were issued to the respondents and separate returns have been filed by them in response to the notice of writ petition. The respondents No. 1 to 3 have filed a return saying that since the order has been passed by the appellate authority in exercise of quasi-judicial powers, no reply of the writ petition is required to be filed. The respondent No. 4 has also supported the claim made by the respondent No. 6. The respondent No. 6 has filed a detailed return contending that though he was working as Sarpanch at the relevant time but he subsequently submitted the resignation, made an application for grant of appointment as Panchayat Karmi and since he was selected in terms of the resolution passed by the Gram Panchayat, he was rightly appointed as Panchayat Karmi. There was no occasion for the respondent No. 3 to exercise the power under sub-section (2) of section 86 of the Act inasmuch as the Gram Panchayat has already complied with the instructions of the State Authority. It is, thus, contended that it was beyond the jurisdiction of respondent No. 3 to make any fresh appointment as if the Gram Panchayat has not complied with the instructions and, therefore, action was rightly taken by the respondent No. 6 for filing of an appeal against such an order and the appeal having been allowed, illegal order said to be passed by the respondent No. 3 has rightly been set aside. Thus, it is contended that the interference in an order passed was not called for and the order passed by the appellate authority is required to be affirmed. Thus, a prayer is made for dismissal of the writ petition. ( 3. Thus, it is contended that the interference in an order passed was not called for and the order passed by the appellate authority is required to be affirmed. Thus, a prayer is made for dismissal of the writ petition. ( 3. ) HEARD learned Counsel for the parties at length and perused the records. ( 4. ) THE order passed by the Commissioner simply put at knot the orders passed by the Collector in his exercise of power under section 86(2) of the Act. However, the learned appellate authority has not completely examined the facts of the case. If the Gram Panchayat has acted fraudulently, has passed an erroneous resolution, apart from the power to put the resolution of the Gram Panchayat under suspension, there is still power available with the competent authority to initiate the process for recruitment on the post of Panchayat Karmi. THE State Government has issued a circular on 27-1-2006 categorically providing that in the Gram Panchayats wherever the posts of Panchayat Karmi are not filled in, the Collector of the concerned district is required to issue instructions to such Gram Panchayats to make appointment of Panchayat Karmi within a period of 30 days from the date of issuance of the direction. Such directions are required to be issued under section 86(1) of the Act. In case after issuance of such direction it is found that the concerned Gram Panchayat has not carried out the direction issued by the competent authority, then the said authority is empowered to take action for fulfilling the direction itself as if it is exercising the power of the Panchayat, as per the provisions of section 86(2) of the Act. It is to be seen that such a direction issued under sub-section (1) of section 86 of the Act is to be complied with, strictly in accordance to the instructions of the State. If there are lapses on the part of the Panchayat or illegalities are committed in making such appointment, the power still can be exercised for making proper selection of a candidate. In the case in hand admittedly the respondent No. 6 was elected Sarpanch of the Gram Panchayat. According to his own showing, he tendered a notice of resignation on 19-8-2007 as is evident from Annexure R/1 filed along with the return of respondent No. 6. In the case in hand admittedly the respondent No. 6 was elected Sarpanch of the Gram Panchayat. According to his own showing, he tendered a notice of resignation on 19-8-2007 as is evident from Annexure R/1 filed along with the return of respondent No. 6. The advertisement calling the applications for appointment of Panchayat Karmi was issued by the Gram Panchayat well before this date as is evident from document Annexure P-6 filed along with the writ petition. The last date for submitting the application forms for appointment on the post of Panchayat Karmi in the office of Gram Panchayat, Karondi was 10-8-2009. Accordingly, it can be seen that on that day the respondent No. 6 being a Sarpanch of the very same Gram Panchayat was not eligible to make an application for his appointment as Panchayat Karmi. With an object to become eligible, it appears that the notice for resignation was given by the respondent No. 6. ( 5. ) THE office bearers of the Gram Panchayat have a right to resign from their post. THE provisions in this respect have been made in section 37 of the Act. It is specifically provided that the Sarpanch or Up-Sarpanch of the Gram Panchayat may resign his office by giving notice in writing to the prescribed authority. Sub-section (3) of section 37 of the Act specifically provides that the manner of giving notice and procedure for tendering resignation and its becoming effective shall be as may be prescribed. THE State Government in exercise of its power to make rules has made the rules for acceptance of the resignation. It is categorically provided that after tendering the resignation by a Sarpanch or Up-Sarpanch before the concerning Gram Panchayat, the Secretary of the Gram Panchayat is required to send the same to the Deputy Director concerned and to the Collector of the District. THE meeting of the Gram Panchayat is required to be called mentioning specifically that in the said meeting the resignation tendered by the office bearer is required to be considered. THE meeting of the Gram Panchayat is required to be called mentioning specifically that in the said meeting the resignation tendered by the office bearer is required to be considered. THE person who has tendered resignation is required to be called and if he is not willing to withdraw the resignation, the same is to be accepted by the Panchayat, intimation of such a resignation is required to be sent and then from the date the resignation is accepted, a vacancy on the post is required to be declared by the concerning authorities. Nothing in this respect was done, no documentary evidence is produced to prove that the resignation of the respondent No. 6 was accepted in terms of the statutory provisions of the rules. THErefore, it cannot be said that the resignation of the respondent No. 6 was rightly accepted and, therefore, there was no infirmity committed in the matter of appointment of Panchayat Karmi. This is also clear that even when the advertisement was already issued pursuant to the instructions dated 9-7-2007, yet another advertisement was issued on the strength of some instructions issued by the Janpad Panchayat, Pushprajgarh and in the said advertisement, the last date for receiving the application was fixed on 30-8-2007. Such an advertisement is Annexure P-8 filed along with the writ petition. Thus, it is proved that illegally the advertisement was issued once again with an intention to make an opportunity to respondent No. 6 to make application for his selection, which he otherwise could not make pursuant to earlier advertisement because of his holding post of Sarpanch of very same Gram Panchayat. ( 6. ) SURPRISINGLY the resignation of the respondent No. 6 was said to be accepted on 30th August, 2007 that too by the Deputy Director of Panchayat and Social Justice Department, Anooppur. The said authority was not competent to accept the resignation. Therefore, there was no valid resignation nor there was any question of its acceptance. SURPRISINGLY on the very same day i.e. 30th August, 2007, resignation of respondent No. 6 was accepted and on the very same day he filed an application before the Panchayat for his appointment as Panchayat Karmi and the said application was accepted though it was only the last day for filling the application for the said purpose. SURPRISINGLY on the very same day i.e. 30th August, 2007, resignation of respondent No. 6 was accepted and on the very same day he filed an application before the Panchayat for his appointment as Panchayat Karmi and the said application was accepted though it was only the last day for filling the application for the said purpose. Thus, from this it is clear that a fraud was, in fact, played by the respondent No. 6 so that he may grab the post of Panchayat Karmi and get himself notified as Secretary of the Gram Panchayat. This being so, the proceedings done by the Gram Panchayat cannot be approved at all. From the record it is clear that on 20-9-2007 some sort of resolution was passed in which the applications of all concerned were considered. The applications of the present petitioner and respondent No. 6 were considered. Though the respondent No. 6 was less meritorious than the petitioner, yet giving him benefit of certain experience as Sarpanch, the resolution was passed in his favour and he was given the appointment as Panchayat Karmi. From the records it is clear that if the merit order was to be considered, it was only the petitioner who has secured 62% marks in the qualifying examination and, therefore, he alone was entitled to be put at S. No. 1 of the select list. The respondent No. 6 has obtained only 48% marks in the qualifying examination and, therefore, other marks which were given to him for higher education or experience etc. were not to be added and his aggregate marks were not to be made as 68%. This is how if the selection was done by the respondent Gram Panchayat, it was well within the competence of the Collector to set aside such an illegal selection and directing proper selection. The order passed by the Collector against which the appeal was preferred by the respondent No. 6 is available on record. This is how if the selection was done by the respondent Gram Panchayat, it was well within the competence of the Collector to set aside such an illegal selection and directing proper selection. The order passed by the Collector against which the appeal was preferred by the respondent No. 6 is available on record. The Collector was of the opinion that in fact the selection for appointment on the post of Panchayat Karmi was to be done in accordance to the instructions of the State Government and the Gram Panchayat having failed to discharge its duty in terms of the instructions issued by the respondent Collector, the Collector was right in directing that in such places where illegalities were committed in the matter of appointment, the proceedings be done for preparation of merit list of the candidates who have applied pursuant to the advertisement and after getting such a list prepared, directing that the selected candidate be given charge of the post of Panchayat Karmi. This order was not to be interfered in the manner it has been by the Commissioner. ( 7. ) THE appeal filed by the respondent No. 6 was considered and only because it is held that the selection of the respondent No. 6 was already made as the resignation submitted by him was properlv accepted, therefore, there was no requirement of exercising the power under sub-section (2) of section 86 of the Act by the Collector and because of these reasonings, the order of the Collector has been set aside. THE Commissioner, Shahdol, has utterly failed to see that the selection of respondent No. 6 was not lawfully made and an illegal appointment was not to be approved to give benefit to respondent No. 6. It is the settled position of law that the Courts exercising appellate power are not required to pass such orders which will give approval to an illegal order. THE latest view expressed by this Court in the case of Nisha Bai w/o Dinesh Kumar vs. State of M. P. and others, 2008(1) MPLJ 219 clearly lays-down that if by passing any order in a litigation it would mean to restore an illegal order, the power should not be exercised by the Appellate Authority. THE latest view expressed by this Court in the case of Nisha Bai w/o Dinesh Kumar vs. State of M. P. and others, 2008(1) MPLJ 219 clearly lays-down that if by passing any order in a litigation it would mean to restore an illegal order, the power should not be exercised by the Appellate Authority. Such a view has been taken by this Court in view of the law laid-down by the Apex Court in case of Gadde Venkateshwara Rao vs. Government of Andhra Pradesh and others, AIR 1966 SC 828 , and in the case of Mohammad Swalleh and others vs. IIIrd Addl. District Judge, Meerut and another, AIR 1988 SC 94 . Thus, the Commissioner should have seen that the order of appointment was obtained by the respondent No. 6 by playing fraud not only against the statutory rules but with the Gram Panchayat and the public at large, therefore, his illegal order of appointment was not to be approved by passing order to set aside the order passed by the Collector. Having failed to do so, the order of Commissioner, Shahdol, impugned in this writ petition cannot be given a stamp of approval. ( 8. ) THE fact remains that the petitioner was already appointed and an order of appointment was issued in his respect, pursuant to which he has already given his joining and started working. THE respondent No. 6 was never notified as a Secretary of the Gram Panchayat as there was a complaint made in respect of illegalities committed in the matter of appointment of respondent No. 6. THE Collector was, thus, again competent to see whether respondent No. 6 was to be delegated the power of Secretary of the Gram Panchayat or not. THE Collector if has reached to the conclusion that the appointment of respondent No. 6 was not legal and has rightly set aside his order of appointment, has directed making appointment of proper person, no wrong was committed by the Collector and his order was not liable to be set aside in the manner and on the basis of the findings so reached by the respondent No. 2. In the considered opinion of this Court, the order of respondent No. 2 dated 30-12-2008 (Annexure P-20) is not sustainable in the eye of law. Accordingly, the same is quashed. In the considered opinion of this Court, the order of respondent No. 2 dated 30-12-2008 (Annexure P-20) is not sustainable in the eye of law. Accordingly, the same is quashed. The petitioner has rightly been appointed as Panchayat Karmi and he be allowed to continue on the post of Panchayat Karmi and the Secretary of Gram Panchayat, Karondi. ( 9. ) IN the result, the writ petition succeeds and is allowed as indicated hereinabove but no order as to costs. Petition allowed.