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Madhya Pradesh High Court · body

2012 DIGILAW 616 (MP)

Narendra Kumar v. State of M. P.

2012-06-27

K.K.TRIVEDI

body2012
ORDER 1. This petition is directed against the order dated 23.10.2007 passed by the respondent No.2 by which while suspending the resolution of Gram Panchayat, Padariya, Block Kundam, District Jabalpur, it is directed that the respondent No.4 be appointed and notified as Panchayat Karmi and Secretary of the abovesaid Gram Panchayat. Such order has been issued in exercise of powers under section 85(1) of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as ‘Act’). 2. The contention of the petitioner is that certain applications were invited for appointment of Panchayat Kakrmi by the Gram Panchayat, Padariya. The petitioner, who was fully qualified, made an application along with requisite documents and experience certificate. The Gram Panchayat passed a resolution and decided to grant appointment to the petitioner on the post of Panchayat Karmi. Pursuant to the said resolution, order of appointment was issued in favour of the petitioner on 31.8.2007. The said order was not challenged by the respondent No.4 in appropriate manner as prescribed under the Madhya Pradesh Panchayat Appeal and Revision Rules, 1995 (hereinafter referred to as ‘Rules’). On the other hand, complaint was made before the Sub-Divisional Officer against the resolution of the Gram Panchayat. The said authority instead of granting an opportunity of hearing, passed the order impugned directing that the resolution passed by the Gram Panchayat is suspended. The Sarpanch of the Gram Panchayat was directed to issue an order of appointment in respect of respondent No.4. The matter was directed to be referred to the Collector, Jabalpur, for approval of the order of suspension as provided under section 85(2) of the Act. Since the petitioner was not granted an opportunity of hearing, he was required to file this writ petition. 3. While entertaining the writ petition, this Court has granted stay of the order impugned insofar as it relates to direction for appointment of respondent No.4 but the suspension of the resolution was not stayed. As a result, the petitioner has not been appointed till now. It is contended that since the order of the Sub-Divisional Officer is not affirmed by the Collector within the prescribed period as per the provisions of sub-section (2) of section 85 of the Act, the order is non est in the eye of law and petitioner is entitled to continue on the post on which he was appointed. 4. It is contended that since the order of the Sub-Divisional Officer is not affirmed by the Collector within the prescribed period as per the provisions of sub-section (2) of section 85 of the Act, the order is non est in the eye of law and petitioner is entitled to continue on the post on which he was appointed. 4. It is also contended by learned counsel for the petitioner that the remedy available to respondent No.4 was to challenge the order of appointment of the petitioner in appropriate manner before the Sub-Divisional Officer by filing an appeal under rule 3 of the Rules within the stipulated period. No such appeal was preferred by the respondent No.4 and as suchall actions taken by respondent No.2 pursuant to complaint made by respondent No.4 with respect to the consideration whether the resolution of the Gram Panchayat was correct or not, are unjustified and illegal. Thus, it is contended that the order impugned is bad in law and is liable to be quashed. 5. Per contra, respondent No.4 has filed a return contending inter alia that the petitioner could not have been selected for appointment as his relative was office bearer of the Gram Panchayat. The affidavits of various Panchas have been filed indicating that the petitioner was never selected in the regular meeting of the Gram Panchayat. In fact no meeting whatsoever was convened on 27.7.2007 nor the Gram Panchayat has selected the petitioner for his appointment as Panchayat Karmi. It is contended that fraudulently the order of appointment was got issued in respect of the petitioner by the then Sarpanch of the Gram Panchayat. The respondents No.1 and 2 have filed their return contending that proper action was taken by the Sub-Divisional Officer and after calling the record of the Gram Panchayat, it was found that proper selection was not done. A candidate, who was having more merit marks than the petitioner was left out whereas a less meritorious person was selected and appointed. In view of this, respondent No.2 was right in exercising his power under section 85(1) ofr the Act to suspend the illegal resolution of the Gram Panchayat. 6. Meeting out such allegations, petitioner has filed a rejoinder contending inter alia that the respondents are making false allegations against the petitioner. He is not related to anybody, who was working as office bearer of the Gram Panchayat. 6. Meeting out such allegations, petitioner has filed a rejoinder contending inter alia that the respondents are making false allegations against the petitioner. He is not related to anybody, who was working as office bearer of the Gram Panchayat. It is contended that affidavit to this effect was filed by the petitioner before the Sarpanch. The relevant documents were filed by him before the respondents. Resolution itself was passed in writing, copy of which is placed on record as Annexure P-6 filed along with the rejoinder. All the Panchas elected were present and have duly considered the selection of the petitioner on account of his merit. Thus, it is contended that the stand of the respondents is contrary to the records and as such the return of the respondents be discarded and the petitioner be granted the relief claimed in the writ petition. 7. Heard learned counsel for the parties at length and perused the record. 8. True it is that the Sub-Divisional Officer is empowered to suspend the resolution of the Gram Panchayat in exercise of his powers under section 85(1) of the Act in case it is found after an enquiry that such a resolution is not valid, proper, justified or legal. However, before passing such an order, a summary enquiry is required to be conducted. Since, the resolution of the Gram Panchayat was suspended, it was not acted upon. However, the order of suspension of the resolution of the Gram Panchayat is required to be referred to the next higher authority, i.e., the Collector, under sub-section (2) of section 85 of the Act. The Collector is required to hear all concerned and then either to confirm the order of suspension of the resolution or to revoke or modify the order of suspension of the resolution. Such a reference is required to be made within a period of 10 days from the passing of the order of suspension of the resolution. Nothing is said by the respondents No.1 and 2 in their return whether such requirement is fulfilled or not and any order was passed by the Collector affirming the resolution of the Gram Panchayat or not. As has been pointed out, this Court has not stayed the said part of the order of Sub-Divisional Officer impugned in this writ petition. Nothing is said by the respondents No.1 and 2 in their return whether such requirement is fulfilled or not and any order was passed by the Collector affirming the resolution of the Gram Panchayat or not. As has been pointed out, this Court has not stayed the said part of the order of Sub-Divisional Officer impugned in this writ petition. In view of this, at present it cannot be said that still the order of suspension of the resolution is in force or not. 9. The other aspect is that the Sub-Divisional Officer on his own could not have ordered the Gram Panchayat to make the appointment of respondent No.4 on the post of Panchayat Karmi. If the Sub-Divisional Officer was of the opinion that the resolution for selection of Panchayat Karmi is not rightly passed by the Gram Panchayat, he could have suspended such resolution and the matter could have been remitted back to the Gram Panchayat for making the proper selection and pass the appropriate orders. It is also not clear from the return of respondents No.1 and 2 whether this was done or not. As is reflected in the order impugned, in fact the Sub-Divisional Officer has directed appointment of respondent No.4 as Panchayat Karmi, which could not have been done. Lastly, it is to be seen that in what manner the resolution was passed by the Gram Panchayat for giving appointment to the petitioner. The resolution, which has been placed on record as Annexure P-6 along with the rejoinder of the petitioner, is examined.Though a merit list was prepared only on the basis of marks obtained by the candidates in the qualifying examination but it is not clear as to whether the Gram Panchayat has, before issuing of any advertisement for appointment on the post of Panchayat Karmi, decided to give weightage to experience or any other qualification in the matter of selection on the post of Panchayat Karmi and whether such intention of the Gram Panchayat was reflected in the advertisement or not. If no such prescription was made, the Gram Panchayat concerned was required to make the selection strictly in order of merit as prescribed by the State Government in the scheme made for appointment of Panchayat Karmis. It appears that the application of respondent No.4 was rejected only because one of his relative was working as Ward Member/Panch in the Gram Panchayat. It appears that the application of respondent No.4 was rejected only because one of his relative was working as Ward Member/Panch in the Gram Panchayat. This was to be seen whether such a disqualification is specifically provided in the scheme or not. If the application of respondent No.4 was not to be rejected in the said manner, illegality was committed by the Gram Panchayat in rejecting the said application. From the merit list it is clear that said respondent No.4 was more meritorious than the petitioner and had his application been not rejected, he would have become No.1 in the merit list. In view of this, the selection made by the Gram Panchayat for appointment on the post of Panchayat Karmi cannot be affirmed. 10. Though the order passed by the respondent No.2 could have been challenged in an appeal but the writ petition has been directly filed before this Court. In the given circumstances, keeping in mind the action taken by the authorities, it is not necessary for this Court to dismiss the writ petition only on this ground.As has been found by this Court in many cases, the authorities are not acting in accordance to law in the matter of appointment of Panchayat Karmis. However, for all these reasons, this Court cannot keep its eyes shut and refuse to exercise its extraordinary power under Article 226 of the Constitution of India in such matter of employment.Though the order impugned may not be in force at present, however, entire proceedings done in this respect are required to be quashed. 11. Resultantly, the selection done by the respondent Gram Panchayat and the resolution of the Gram Panchayat dated 27.7.2007 (Annexure P-6) as also the order dated 23.10.2007 (Annexure P-1) are hereby quashed. The matter is remitted back to the Gram Panchayat with a specific direction to re-screen the applications submitted by all the candidates pursuant to the selection initiated for appointment on the post of Panchayat Karmi and to prepare a merit list strictly in order of merit, on the basis of marks obtained in the qualifying examination and to convene a meeting for selection of Panchayat Karmi. Cases of petitioner and respondent No.4 both be considered in the said meeting. Cases of petitioner and respondent No.4 both be considered in the said meeting. Proper selection of Panchayat Karmi be done and the resolution be passed in this respect and the order of appointment be issued in respect of the selected candidate within a order of appointment be issued in respect of the selected candidate within a period of six weeks from the date of receipt of certified copy of the order passed today. The Sub-Divisional Officer, Kundam, and the Chief Executive Officer of Janpad Panchayat concerned will supervise such selection and appointment of Panchayat Karmi in Gram Panchayat, Padariya, ?Tahsil Kundam, District Jabalpur. 12. With the aforesaid, the writ petition is finally disposed of. There shall be no order as to cost.