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Madhya Pradesh High Court · body

2011 DIGILAW 853 (MP)

Anupam Gupta v. State Of M. P.

2011-08-01

K.K.TRIVEDI

body2011
JUDGMENT ( 1. ) THIS writ petition under Article 226 of the Constitution of India has been filed seeking to challenge the order dated 26-12-2008 passed by respondent No. 6 as also seeking a direction against the respondents to make appointment pursuant to the application submitted by the petitioner, appointing him on the post of Panchayat Karmi of Gram Panchayat, Latagaon, District Satna. A further direction is sought against respondent No. 5 to take decision in the pending proceedings regarding appointment of petitioner as per the resolution of the Gram Panchayat. ( 2. ) FACTS in brief of the case are that the Gram Panchayat, Latagaon was directed to take action for appointment of a Panchayat Karmi and for the said purpose, an advertisement was issued on 3-8-2007 by the Sarpanch of the said Gram Panchayat. The applications were invited. Pursuant to this, the petitioner submitted his application. As many as 25 applications were received by the Gram Panchayat and a meeting of Gram Panchayat was convened on 26-8-2007. The name of the petitioner was put at S. No. 1 of the list of candidates, who have applied for appointment on the post of Panchayat Karmi, taking into account the marks obtained by him in the qualifying examination, which according to the resolution are 71.2%. It is said that after considering all the applications, four Panchas gave their opinion that the petitioner be appointed as Panchayat Karmi in the said Gram Panchayat. However, out of 19, 14 Panchas gave their opinion that one Satyendra Pratap Singh Bundela be appointed on the post. There was no selection held pursuant to the instructions of the State Government though only a meritorious candidate was required to be selected. The Gram Panchayat, therefore, resolved that the matter be referred to the Chief Executive Officer of Janpad Panchayat for taking final decision in the matter of appointment of Panchayat Karmi. According to the petitioner, he alone was meritorious having secured first merit order in the select list, therefore, he should have been appointed on the post pursuant to the instructions issued by the State Government on 13-8-2007. The instructions were issued in this respect by the Deputy Director, Panchayat and Social Justice, on 6-10-2007 but no action was taken. According to the petitioner, he alone was meritorious having secured first merit order in the select list, therefore, he should have been appointed on the post pursuant to the instructions issued by the State Government on 13-8-2007. The instructions were issued in this respect by the Deputy Director, Panchayat and Social Justice, on 6-10-2007 but no action was taken. The petitioner approached this Court by way of filing Writ Petition No. 1656/2008, which was disposed of vide order dated 15-2-2008 directing that the petitioner should approach the Sub Divisional Officer, Maihar, by making an application under section 85 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as Act). It is contended that pursuant to the direction of the Court, the petitioner made an application before the competent authority, i.e. respondent No. 6, but on 26-12-2008 the case was closed saying that the matter is pending consideration before this Court in Writ Petition No. 14704/2007 and since a resolution is passed by the Gram Panchayat, no interference in the same was called for under the provisions of section 85 of the Act. This being so, the petitioner was required to approach this Court by way of filing the present writ petition. The matter is contested by the respondents and they have filed return. Respondents No. 1 to 4 and 6 have filed their return and contended that since the writ petition earlier filed by the petitioner was disposed of, an application was filed by the petitioner before the respondent No. 4. Alleging that the orders passed by this Court were not being complied with, a Contempt Petition No. 595/2008 was filed by the petitioner against the respondent No. 6 and the facts were brought to the notice that the resolution of the Gram Panchayat has already been upheld and the orders have already been passed. It was pointed out by the said authority that since there is an interim stay granted in the Writ Petition No. 14704/2007 and in the said writ petition the present petitioner is also an intervener it was contended that the petitioner was not entitled to any relief. However, both the writ petitions were directed to be listed together for analogous hearing. ( 3. However, both the writ petitions were directed to be listed together for analogous hearing. ( 3. ) THE respondent No. 5 has filed a separate return contending that since the Sub Divisional Officer has found that the writ petition was filed by one Satyendra Pratap Singh Bundela and same was pending before this Court, orders were rightly passed by the Sub Divisional Officer. For the said reason, since the direction to decide the matter contained in the order of respondent No. 3 was stayed, the respondent No. 5 was not in a position to take any action. ( 4. ) THE respondent No. 7 has also filed a separate return and has contended that since the resolution could not be passed for selection of one person, the matter was referred to the Chief Executive Officer of Janpad Panchayat and that one person sent on transfer is working in the Gram Panchayat with effect from 12-6-2008. From the pleadings, the documents and the contentions raised orally, it is clear that a complete mismanagement was there in the matter of making selection and appointment of a Panchayat Karmi in the meeting of the Gram Panchayat, said to be held on 26-8-2007. From the resolution it appears that though the advertisement was issued prior to 13-8-2007 but it was decided by the Gram Panchayat to select a candidate on merits. Merit list was drawn on the basis of the marks obtained in the qualifying examination and the petitioner was put at S. No. 1. However, there was a difference of opinion amongst the Panchas for selection and appointment of petitioner and, therefore, ultimately the decision was taken to refer the matter to the Chief Executive Officer of Janpad Panchayat. The right course open to all was to wait till the decision is taken by the Chief Executive Officer for making a selection of a suitable person for appointment on the post of Panchayat Karmi and if anybody was aggrieved by the order of the Chief Executive Officer, challenge the same before competent authority under section 91 of the Act read with Rule 3 of the Madhya Pradesh Panchayat (Appeal and Revision) Rules, 1995. It appears that in between some fraud was played by the then Sarpanch of the Gram Panchayat, who issued the order of appointment in respect of one Satyendra Pratap Singh Bundela, though at that point of time the said person was not even selected for appointment on the post of Panchayat Karmi. Only in the meeting of the Gram Panchayat, the voting was done in his favour by 14 Panchas. It is the consistent view of this Court that Panchayat Karmi are not to be selected by casting vote by the Panchas of the Gram Panchayat concerned. If the merit order was required to be seen, petitioner was the only person who was to be appointed on the post of Panchayat Karmi. However, having failed to do so, the Gram Panchayat was right in referring the matter to the Chief Executive Officer of Janpad Panchayat, Maihar, District Satna. As per the provisions of section 86(2) of the Act, the said authority is only competent authority under the orders of the Collector to draw a merit order, get its approval from the competent authority, i.e. the Collector, and then issue the order of appointment of Panchayat Karmi. The Sarpanch of the Gram Panchayat on his own could not have appointed anybody as has been done in the present case. It is also pertinent to mention here that writ petition filed by Satyendra Pratap Singh Bundela being W. P. No. 14704/2007 has been heard analogously and has been dismissed by a separate order passed today by this Court. ( 5. ) IN view of this, the respondents No. 4 and 5 are directed to prepare a merit order of the candidates in accordance to the instructions contained in circular dated 27-1-2006 and select a suitable person on the basis of the merit, one person may be selected for putting his name in the waiting list and after getting approval, issue the order of appointment in favour of the person, whosoever is selected for appointment, on the post of Panchayat Karmi of Gram Panchayat, Latagaon, Tahsil Maihar, District Satna, within a period of one month from the date of production of certified copy of this order. It is made clear that only those applications are to be considered which have been received by the Gram Panchayat pursuant to the advertisement dated 3-8-2007 and no fresh advertisement is required to be issued. It is made clear that only those applications are to be considered which have been received by the Gram Panchayat pursuant to the advertisement dated 3-8-2007 and no fresh advertisement is required to be issued. The selected candidate be appointed on the post and be notified as Secretary of the Gram Panchayat under the provisions of section 69(1) of the Act within the aforesaid period. ( 6. ) THE writ petition is accordingly allowed to the extent indicated hereinabove but with no order as to cost. Petition allowed.