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2012 DIGILAW 602 (MP)

Ganesh Singh Rawat v. State of M. P.

2012-06-25

SUJOY PAUL

body2012
JUDGMENT : The brief facts necessary for adjudication of this matter are as under : 1. The petitioner has prayed for setting aside the appointment order of respondent No. 6 (Annexure P-3.) on the ground that admittedly the said' respondent is real brother of the sitting sarpanch. The case of the petitioner is that as per Section 6of the Madhya Pradesh Panchyat Raj Evam Gram Swaraj Adhiniyam, 1993 (Adhiniyamfor brevity), the private respondent is disqualified to hold the post of Panchayat Secretary. 2. Shri Samadhyia, learned counsel for the petitioner submits that in the meeting of Gram Panchayat various candidates were considered for the said post. The relevant marks which were obtained by the candidates which is reflected in the resolution dated 21.11.2004 reads as under:- 3. Shri Samadhiya submits that respondent No. 6's marks were less than the marks obtained by other candidates, yet he has been selected for the post of secretary. The learned counsel heavily placed reliance on a Division Bench Judgment of this Court reported in 2009ILR MP1607 (Lallu Kol Vs. State of M. P. & Others). It is not in dispute that this Division Bench order of this Court is affirmed by the Supreme Court. On the basis of this Court is affirmed by the Supreme Court. On the basis of this, petitioner submits that the selection of respondent No. 6 should be cancelled. The learned counsel further submits that by impugned order Annexure P-1 and P-2 the authority below has erroneously relied on the letter dated 19.1.1996 By Placing reliance on that document, it is submitted that it is not even executive instruction. The learned counsel further submits that this letter dated 19.1.1996 cannot be accepted bcause it runs contrary to he interpretaion given by this Court in Lallu Kol (supra). 4. Per Contra, Shri S. K. Sharma and Shri D. S. Raghuvanshi, learned counsel for respondent No. 6 submits that the petitioner is a busybody and has vengeance with respondent No. 6 and, therefore, this petition even if filed as quo-warranto, cannot be entertained. It is the stand of respondent No. 6 that the law laid down by this Court in 1999 (2) J. L. J. 374 (Parahlad Singh Patel Vs. State of M. P. and others) will hold the field. It is the stand of respondent No. 6 that the law laid down by this Court in 1999 (2) J. L. J. 374 (Parahlad Singh Patel Vs. State of M. P. and others) will hold the field. To elaborate, Shri S. K. Sharma submits that at the time of selection and appointment of respondent No. 6 Prahalad Singh's Judgment (supra) was in vogue and the Division Bench Judgment of Lallu Kol (supra) does not have any retrospective effect. It is further submitted that the petitioner has no locus standi to challenge the appointment of respondent No. 6. It is further submitted by learned counsel for respondent No. 6 that earlier W. P. No. 2458/10 was filed by one candidate Veeru Gaur, who ultimately withdrew the said petition. It is submitted that once a contesting candidate has decided to withdraw the petition, the present petitioner who is a stranger and a busybody has no locus to challenge the said order. 5. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. 6. This is settled in law that a writ of quo-warranto can be issued where a person occupies a public office, who is disqualified/ineligible to occupy the same. In the considered opinion of this Court, merely because an aggrieved person has withdrawn his writ against the selection of respondent No. 6 will not preclude the petitioner to challenge the legality, validity and constitutionality of the selection of respondent No. 6 Thus, the said contention of respondent No. 6 is rejected. So far the writ of quo-warrant is concerned, the Apex Court in (2009) 7 SCC1, (N. Kannadasan vs. Ajoy Khose) and others held as under in para 109:- 109. Indisputably, a writ petition even at the instance of a busybody for issuance of a writ of quo warranto questioning the appointment of Chairman of a State Commission made in terms of Section 16 (1) (a) of the Act would be maintainable. For the aforementioned purpose the eligibility criteria as laid down in Section 16 (1) (a) of the Act as also the question as to whether in making such an appointment the State consulted the Chief Justice of the High Court as envisaged under the proviso appended thereto would fall for consideration. An appointment to a statutory post is an administrative decision. The act of consultation is an executive act.(Emphasis Supplied) 7. An appointment to a statutory post is an administrative decision. The act of consultation is an executive act.(Emphasis Supplied) 7. In 2009 (1) M. P. L. J. 138 (Lalan Thakur vs. State of MP others), this Court held as under in para 15:- 15. The petition was opposed by the respondent/State on the ground of maintainability, however, the Apex Court in the case of Calcutta Gas Company (Proprietary Limited (supra) has held that Article 226 of the Constitution confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of the rights conferred by Part-Ill or for any other purpose. It has also been held that in case of some of the writs like habeas corpus or quo warranto, a person who is not the person aggrieved can also prefer a writ petition in the matter. A similar view was expressed by the Apex Court in the other Judgments cited by the learned counsel appearing for the petitioner.(Emphasis Supplied) 8. In (2008) 8 SCC 273 (Mahesh Chandra Gupta vs. Union of India and other) the Apex Court held that eligibility is an objective factor and one eligibility is put in question, it falls within the scope of judicial review in a quo-warranto petition. In view of aforesaid judgments of Supreme Court, it is crystal clear that a petition for quo warranto is entertainable even if it is filed by a stranger, who is not aggrieved person. Thus, I am unable to hold that the present petition at the behest of the petitioner is not tenable. Even assuming for the sake of argument that the present petitioner was not a party in the proceedings in which Annexure P- and P-2 are passed, even then he has a right to assail the appointment of the private respondent herein dated 21.11.2004. The orders Annexure P-1 and P-2 are not binding on the petitioner because he was not a party in the said matter. In the relief clause the petitioner has assailed the order of appointment dated 21.11.2004. Thus, I am unable to hold that the present petitioner has no locus or the petition is not tenable. For the reasons stated above this writ of quo-warranto is maintainable for deciding the eligibility of respondent No. 6 9. Section 6of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 reads as under:- 69. Thus, I am unable to hold that the present petitioner has no locus or the petition is not tenable. For the reasons stated above this writ of quo-warranto is maintainable for deciding the eligibility of respondent No. 6 9. Section 6of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 reads as under:- 69. Appointment of Secretary and Chief Executive Officer:- (1) The State Government or the prescribed authority may appoint Secretary for the Gram Panchayat or Group of two or more Gram Panchayats; Provided that the person holding the charge of a Secretary of Gram Panchayat immediately before commencement of this Act Shall continue to function as such till a secretary is appointed in accordance with section. Provided further that a person shall not hold the charge of Secretary of Gram Panchayat, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat. Explanation. - For the purpose of this sub-section the expression 'relative' shall mean father, mother, brother, sister, husband, wife, son, daughter, father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law. 10. In a Division Bench of this Court in Lallu Kol Vs. State of M. P., reported in I.L.R. (2009) MP. 1607, held as under in para 12 to 15:- 12. In view of the aforesaid provision, on examining the case at hand, it is apparent that on the date of passing the resolution dated 21.08.07 (AnnexureP-1 with the writ petition) and on the date of issuing notification dated 17.09.07 (Annexure P-2 with the writ petition) the brother of the respondent No. 4 Shri Rajendra Prasad Tiwari was the sitting Panch of respondent No. 3 Gram Panchayat. Although according to the respondent No. 4 he had tendered his resignation from such office on 30.07.07 and thereafter he did not participate in any meeting including the meeting dated 21.08.07. As per available record, it appears that the resignation was received by some official on 24.09.07 subsequent to the meeting in which the impugned resolution (Annexure P-1 with the writ petition) was passed. We have not found any proceeding of the Panchayat or the order of the competent authority showing that even after receiving such resignation by the Sarphach the same was accepted in any meeting of Panchayat. We have not found any proceeding of the Panchayat or the order of the competent authority showing that even after receiving such resignation by the Sarphach the same was accepted in any meeting of Panchayat. In such circumstances, it is apparent that on the date of passing of the resolution to select the respondent No. 4 his brother Shri Rajendra Prasad Tiwari was existing Panch of such Panchayat. 13. As per finding in the impugned order passed by the learned single judge the provision of IInd Proviso of sub section (1) of Section 6of the Adhiniyam are not embargo against selection and appointment of respondent No. 4 on such post of Panchayat Karmi under the Scheme (Yojna) but ban would be against holding of the charge of the Secretary in such Gram Panchayat unless the resignation of his brother Shri Rajendra Prasad Tiwari from the post of Panch is accepted in accordance with the procedure provided under the rules enacted for that. 14. The Proviso II of the aforesaid Sub Section 1 of Section 6speaks that a person shall not hold the charge of a Secretary of Gram Panchayat if he happens to be relative of the office bearer of the concerned Gram Panchayat and as per its explanation the brother is squarely covered under the expression relative. In view of such provision it could not be disputed that on the date of appointment or selection of the respondent No. 4 on the alleged post of panchayat Karmi his brother was the Panch in such panchayat for all purposes because his alleged tendered resignation was not accepted by the Panchayat in accordance with the aforesaid rules. Therefore, respondent No. 4 could not be selected or appointed on such post for holding the charge of Secretary in such Gram Panchayat. 15. Although as per record the brother of the respondent No. 4 said Panch Shri Rajendra Prasad Tiwari had not participated in the meeting of 21.08.07, in which the impugned resolution was passed, in pursuance of which, the notification dated 17.09.07 for giving charge as Secretary of Such Gram panchayat to respondent No. 4 was issued. 15. Although as per record the brother of the respondent No. 4 said Panch Shri Rajendra Prasad Tiwari had not participated in the meeting of 21.08.07, in which the impugned resolution was passed, in pursuance of which, the notification dated 17.09.07 for giving charge as Secretary of Such Gram panchayat to respondent No. 4 was issued. But we are of the considered view that only on account of non participation of Shri Rajendra Prasad Tiwari in the aforesaid meeting would not provide a ground to draw the inference that he did not remain the Panch and the disqualification of the respondent No. 4 on such ground was washed out. In such situation, Shri Rajendra Prasad Tiwari if is held to be Panch of such Panchayat on the date of said resolution, then the respondent No. 4 could not have been appointed as Panchayat Karmi or for holding the charge of the Secretary after the notification.(Emphasis Supplied) 11. A bare perusal of the aforesaid paragraphs of Lallu (supra) shows that this Court has interpreted Section 6of the Adhiniyam. On perusal of the Adhiniyam it was held in similar circumstances that respondent No. 4 therein was held to be disqualified because his brother was a Panch although he did not participate in the meeting. Similar is the case here. Admittedly, the sitting Sarpanch was the real brother of respondent No. 6. On the date of meeting of selection, he did not participate in the selection proceedings. Despite these facts, the Division Bench held that it will not wash away the disqualification of respondent No. 4. 12. Another contention of Shri S. K. Sharma is that subsequently the brother of respondent No. 6 who was sarpanch did not continue and, therefore, from the date respondent No. 6's brother was disqualified as sarpanch, he can continue as Panchaya secretary. I am unable to accept this contention in view of the finding given by Division Bench in para 12 of the judgment in Lallu (supra). The crucial date on which law was required to be seen is the date of passing of resolution. This is the view taken in Lallu (supra) and I am bound by the judgment of Division Bench on the subject. 13. The crucial date on which law was required to be seen is the date of passing of resolution. This is the view taken in Lallu (supra) and I am bound by the judgment of Division Bench on the subject. 13. Another contention of Shri S. K. Sharma That the judgment of Lallu (supra) will have only prospective effect and prior to that the judgment of Prahlad Singh (supra) will hold the field is also liable to be rejected. The only reason is that whenever an existing provision of statute is interpreted by the Court, this is settled in law that it relates back to the date of passing of the provision and not from the date of judgment, unless Court says otherwise. It goes without saying that the judgment of Prahlad Singh (supra) is a Single Bench Judgment. The Division Bench in Lallu (supra) will hold the field for the purpose of deciding the questions involved in this matter. The Apex Court in para 5of the judgment reported in (2000) 6 SCC 224 (Lily Thomas and others Vs. Union of India and others) held as under :- 59. We are not impressed by the arguments to accept the contention that the law declared in Sarla Mudgal case cannot be applied to persons who have solemnized marriages in violation of the mandate of law prior to the date of judgment. This Court had not laid down any new law but only interpreted the existing law which was in force. It is settled principle that the interpretation of a provision of law relates back to the date of the law itself and cannot be prospective from the date of the judgment because concededly the Court does not legislate but only gives and interpretation to an existing law. We do not agree with the arguments that the second marriage by a convert male Muslim has been made an offence only by judicial pronouncement. The judgment has only interpreted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced the judgment. The review petition alleging violation of Article 2(1) of the Constitution is without any substance and is liable to be dismissed on this ground alone. 14. The judgment has only interpreted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced the judgment. The review petition alleging violation of Article 2(1) of the Constitution is without any substance and is liable to be dismissed on this ground alone. 14. A bare perusal of the principles of law laid down by the Apex Court would show that the interpretation of law would relate back to the date of law itself and cannot be prospective from the date of judgment. On the strength of these judgments, this contention of the respondent No. 6 is also rejected. 15. To sum up, it is clear in view of the binding judgment in Lallu (supra) that the appointment of respondent No. 6 is bad in law and was impermissible. The respondent No. 6 was suffering from the disqualification to be considered and appointed. The letter dated 19.1.1996 relied in Annexure P-1 is not even the circular / executive instruction. A minute reading of this letter shows that it is a reply of clarification sought in specific by certain Collectors. This is settled in law that interpretation of a legal provision by the Court will prevail over such letters and, therefore, in view of the interpretation by this Court in Lallu (supra), there is no scope to save the appointment of respondent No. 6 More so, when the Division Bench order of this Court was affirmed by the Supreme Court on dismissal of the S.L.P. 16. Consequently, petition is allowed. The impugned order Annexure P-3 whereby respondent No. 6 was appointed is set aside. The parties shall bear their own cost.