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2015 DIGILAW 400 (MP)

Raghvendra Singh v. State of M. P.

2015-04-08

RAJENDRA MENON, S.K.GANGELE

body2015
JUDGMENT : 1. Seeking exception to an order dated 9.1.2015 passed by the Writ Court in W.P. No. 7986/2011(s), this Writ Appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal), Adhiniyam, 2005. 2. The only legal question involved in this appeal is as to whether a candidate who belongs to a different area other than the village for which the appointment of Panchayat Secretary/Panchayat Karmi is to be made is eligible for seeking appointment to the post? According to the appellant the post of Panchayat Karmi and post of Panchayat Secretary can be filled up only by a local resident living in a village and not by an outsider. This objection having been overruled by the Writ Court, this writ appeal has been filed. 3. Facts in brief goes to show that process of appointment on the post of Panchayat Karmi/Panchayat Secretary to the Village in question was undertaken and in the said process both the respondent No. 7 and appellant were the candidates. Respondent No. 7 was at Srl. No. 1 of the select list and was appointed as Panchayat Karmi as he was more meritorious and was found eligible for appointment. This appointment was challenged on various grounds, mainly on the ground that respondent No. 7 is an outsider. Even though the first Appellate Authority, the Collector upheld the appointment and said that appointment of a more meritorious candidate is proper, the Commissioner, Sagar having interfered with the appointment on the ground that even if, petitioner (Dinesh Kumar Ahirwar) is more meritorious, being an outsider to the village appointment on the post of Panchayat Karmi cannot be given to him in view of the scheme for appointment. Matter came to the Writ Court at the instance of respondent No. 7 Dinesh Kumar Ahirwar and the Writ Court having allowed the writ petition and approved his appointment overruling the objection with regard to his resident, this Writ Appeal has been filed. 4. Matter came to the Writ Court at the instance of respondent No. 7 Dinesh Kumar Ahirwar and the Writ Court having allowed the writ petition and approved his appointment overruling the objection with regard to his resident, this Writ Appeal has been filed. 4. Shri A.M. Trivedi, learned Senior Counsel took us through the scheme and the advertisement issued wherein it is stipulated that as far as possible preference may be given to a local candidate and tried to emphasize that in the scheme for appointment of Panchayat Karmi as a local candidate has to be given more weightage and preference, the Writ Court has committed an error in granting appointment to a person who is not a local resident of the village. Referring to a Division Bench judgment of this Court in the case of Neelam Singh Sikarwar Vs. State of M.P. and others, 2015(1) MPLJ 297 in the matter of appointment of Aanganwadi Karyakarta and the principles laid down in the said case with regard to a Aanganwadi Karyakarta being a resident of the local village, Shri A.M. Trivedi, learned Senior Counsel argued that the learned Writ Court has committed an error in rejecting the claim of the appellant. It was argued that when under the Panchayat Karmi Yojna and Scheme there is a stipulation to the following effect: (Editor: The text of the vernacular matter has not been reproduced.) The Writ Court has committed an error in rejecting the objection of the petitioner. It is argued that appointment of Panchayat Karmi and Aaganwadi Karyakarta are based on schemes. Panchayat Karmis are not civil post holders and in view of the law laid down in the case of Neelam Singh Sikarwar (supra), learned Court has committed an error. 5. Shri A.P. Singh and Shri S.K. Agrawal, learned counsel for the respondents, refuted the aforesaid and invited our attention to a judgment by learned Single Bench of this Court in the case of Jai Prakash Batham Vs. State of M.P. and ors., 2011(2) MPLJ 392 to say in the matter of appointment of Panchayat Karmi in the aforesaid case after considering the principles laid down by the Supreme Court in the case of Kailash Chand Sharma Vs. State of M.P., AIR 2002 SC 2877 and various other cases, the question has been decided and in doing so, no error has been committed. State of M.P., AIR 2002 SC 2877 and various other cases, the question has been decided and in doing so, no error has been committed. It was argued by Shri Sanjay K. Agrawal that even if the Panchayat Karmi are not civil post holders their appointment is made under the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, that statutory rules are framed for controlling their service condition and now a Panchayat Karmi and Panchayat Secretary is a District Cadre Officer, his services are liable to be transferred anywhere in a District and therefore, requirement of person being a local resident, cannot be applied and learned Court in relying on the judgment of Jai Prakash (supra) has not committed any error in allowing the matter. 6. We have considered the rival contentions and we find that petitioner is solely relying in the judgment in the case of Neelam Singh Sikarwar (supra) which lays down the principle for appointment of Aanganwadi Karyakarta and requirement to such appointment is entirely different. An aganwadi karyakarta is not appointed in accordance to any statutory rules or provisions, this appointment and the scheme for setting up of Aanganwadi Centres are not governed by any statutory Rules or regulations. Appointment of Aanganwadi Karyakarta is done on the basis of a executive scheme formulated and the requirement and the work of a Aanganwadi Karyakarta is entirely different. That being so, the principle governing local resident criteria in the matter of appointment of Aanganwadi Karyakarta cannot be applied in the case of Panchayat Karmi. In the case of Neelam Singh Sikarwar (supra) the principle laid down with regard to residence is based on the peculiar nature of duties to be performed by the Aanganwadi Karyakarta and requirement of the scheme which cannot be applied in the case of Panchayat Karmi. 7. In the case of Panchayat Karmi the matter has been considered by a Writ Court in the case of Jai Prakash (supra) and after taking note of the judgment of Supreme Court in the case of Kailash Chand Sharma (supra) the principles have been laid down. 7. In the case of Panchayat Karmi the matter has been considered by a Writ Court in the case of Jai Prakash (supra) and after taking note of the judgment of Supreme Court in the case of Kailash Chand Sharma (supra) the principles have been laid down. In the case of Kailash Chand Sharma (supra) decided by the Supreme Court, matter pertains to appointment of Teachers in the State of Rajasthan by the Janpad Panchayat under the statutory rules governing the panchayat system in the State of Rajasthan and provision for granting bonus marks based on a residence of a person with regard to appointment of Teacher by the Gram Panchayat was quashed by the Supreme Court. In the case of Kailash Chand Sharma (supra), the policy of the State Government was quashed as it was found to be in violation to the requirement of Article 14 and 16 of the Constitution. A Coordinate Bench of this Court in W.A. No. 421/2007 - Smt. Sadhana Vs. State of M.P. and others decided by Hon'ble Chief Justice Shri A.K. Patnaik (as he then was), has held that merit should be the sole criteria for appointment in the Panchayat and a meritorious candidate cannot be superseded and denied appointment on the ground that he is not resident of local locality/village. Such an action is found to be in contravention to the requirement of Article 16(2)of the Constitution. In the case of Smt. Sadhana (supra) also the law laid down by the Supreme Court in the case of Kailash Chand Sharma (supra), has been relied upon. We find that in the matter of appointment of Panchayat Karmi, the scheme is formulated is by virtue of the powers available with the State Government under the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. Panchayat Secretary is a post in District cadre and their services are transferable from one Panchayat to another within the same District. Once the appointment is made to a post where an employee being of whichever locality or village is liable to be transferred to another Panchayat in a village within the District. The question of appointment of Panchayat Karmi or Panchayat Secretary being a local resident of the panchayat will not apply. Once the appointment is made to a post where an employee being of whichever locality or village is liable to be transferred to another Panchayat in a village within the District. The question of appointment of Panchayat Karmi or Panchayat Secretary being a local resident of the panchayat will not apply. Once a cadre is formulated districtwise and an employee borne in the said cadre is liable to be transferred from one village to another, it can never be the intention of the executive authorities to have a Panchayat Karmi who is resident of a local authority. It is common ground and judicial notice can be taken of a fact that Panchayat Secretary and Panchayat Karmi are being regularly transferred from one Panchayat to another in the same District as a policy of the State Government and if such a transfer policy is implemented, it is clear intention of the rule maker that requirement of a person being a local resident is not at all mandatory in nature. That apart, the provision of the scheme as reproduced herein above only indicates that it is directory in nature and not mandatory. If a more meritorious candidate is available, his candidature cannot be rejected or he cannot be denied appointment only on the ground that he is not resident of local village where the Panchayat is situated. Such a reason for denying his appointment will be in violation of the requirement of Article 14 and 16 of the Constitution, which could not be the intention of rule makers. All these aspects have been considered by the learned Writ Court while rejecting the contention of the appellant and we find no reason to take a different view. 8. Accordingly, finding no merit, the appeal is rejected.