Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 359 (ORI)

Ratnakar Behera v. Collector, Cuttack

2016-05-05

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. Assailing the order dated 7.10.1995 passed by the District Panchayat Officer, Cuttack, opposite party no.3, vide Annexure-2 and the order dated 16.5.1998 passed by the Collector, Cuttack, opposite party no.1, in G.P. 2nd Appeal No.3/96, the petitioner has filed this writ petition. By order dated 7.10.1995, the petitioner was directed to handover the charge of the G.P. to Sri Sanatan Swain, opposite party no.5, whereas by order dated 16.5.1998, the opposite party no.1 allowed the appeal filed by the opposite party no.5 and allowed him to continue as Secretary of the G.P. 2. Shorn of unnecessary details, the short facts of the case of the petitioner are that he was appointed as Tax Collector by the Sarpanch, Ragadipada Gram Panchayat, Dist.-Cuttack, opposite party no.4. Opposite party no.5 was the Secretary of the said G.P. His service was terminated by the G.P. on 22.8.1993. Since the vacancy was caused after removal of opposite party no.5, the G.P. took a decision to appoint a new Secretary. After following the due procedure, the G.P. selected the petitioner for the post of Secretary. The opposite party no.3 approved his appointment. The opposite party no.4 issued the order of appointment to the petitioner on 1.8.1995. Pursuant to the same, the petitioner joined as Secretary of the G.P. While the matter stood thus, the opposite party no.3 has withdrawn the order of approval to the appointment of the petitioner with a direction to act as Tax Collector. The order of removal passed against the opposite party no.5 had also been withdrawn. Assailing the same, the petitioner filed a writ petition being O.J.C. No.7343 of 1999 before this Court. This Court disposed of the said writ petition on 10.11.1995 granting liberty to the petitioner to approach the appellate authority as per Section 133 of the Orissa Gram Panchayat Act. Thereafter the petitioner filed G.P. Appeal No.5 of 1995 before the opposite party no.2. The same was allowed on 7.8.1996. The opposite party no.2 came to hold that the opposite party no.3 has no power to withdraw the order of removal of opposite party no.5. Thereafter the opposite party no.5 preferred 2nd Appeal No.3 of 1996 before the opposite party no.1. The same was allowed on 7.8.1996. The opposite party no.2 came to hold that the opposite party no.3 has no power to withdraw the order of removal of opposite party no.5. Thereafter the opposite party no.5 preferred 2nd Appeal No.3 of 1996 before the opposite party no.1. The opposite party no.1 allowed the appeal and directed the District Panchayat Officer, Cuttack to reconsider the order of approval/ withdrawal so far as the opposite party no.5’s case of dismissal from service is concerned by passing a speaking order within two months from receipt of the order. It was further directed that till final decision is taken by the District Panchayat Officer in this regard, the opposite party no.5 shall continue as Secretary of the Grama Panchayat and in case of any adverse order passed against him by the District Panchayat Officer, Cuttack, he is at liberty to appeal against his disciplinary proceeding brought by the G.P. in the appropriate forum under the provision of law. With this factual scenario, the writ petition has been filed. 3. Heard Mr. B.N. Nayak, learned counsel for the petitioner, learned Additional Government Advocate for the State-opposite party nos.1 to 3, Mr. R. Behera, learned counsel for the opposite party no.4 and Mr. S.R. Pati, learned counsel for the opposite party no.5. 4. Mr. Nayak, learned counsel for the petitioner submits that though the opposite party no.3 has the power to withdraw the order of approval relating to the appointment of the Secretary in the G.P., but sufficient reasons must be assigned for the same. In the absence of any valid reason, the order of withdrawal is illegal. Further the order of termination passed by the G.P. is appellable. Prior approval of the opposite party no.3 is not necessary for termination of the Secretary in the G.P. He further submits that the direction of opposite party no.1 to reconsider the matter with regard to the approval and withdrawal of the approval order is not permissible under law. Opposite party no.3 has no authority for the same. 5. Mr. Pati, learned counsel for the opposite party no.5 submits that the power to accord approval takes within its sweep power of withdrawal of the same. He relies on the judgment of this Court in the case of Purnachandra Sahoo vs. State of Orissa and others, 1994 (II) OLR 48. 6. 5. Mr. Pati, learned counsel for the opposite party no.5 submits that the power to accord approval takes within its sweep power of withdrawal of the same. He relies on the judgment of this Court in the case of Purnachandra Sahoo vs. State of Orissa and others, 1994 (II) OLR 48. 6. Learned Additional Government Advocate for the State-opposite party nos.1 to 3 and Mr. Behera, learned counsel for the opposite party no.4 have supported the impugned order. 7. In Purnachandra Sahoo (supra), the question arose before the Division Bench of this Court is as to whether the District Panchayat Officer has any power to withdraw an order of approval already accorded to the appointment of a Secretary of Grama Panchayat. The Division Bench in paragraph 5 of the judgment held thus:- “5. The question that arises for consideration in the present case is whether the District Panchayat Officer has any power to withdraw an order of approval already accorded to the appointment of a Secretary of Grama Panchayat. The provision for according approval is there in Rule 213(2) of the Orissa Grama Panchayat Rules which may be extracted herein below in extenso: “(d) on receipt of the proposal for appointment of Secretary from Grama Panchayat if the District Panchayat Officer is satisfied that the candidate selected by the Grama Panchayat possesses the prescribed qualification and is eligible for the post of Secretary and the selection has been made in accordance with this rule and the remuneration proposed to be paid to the Secretary is reasonable, he shall approve the proposal. If the candidate selected by the Grama Panchayat is found to be disqualified for the post of Secretary or the remuneration proposed to be paid is excessive the District Panchayat Officer may direct the Grama Panchayat to select another candidate in the prescribed manner or reconsider the remuneration and re-submit the proposal.” The aforesaid provision casts on a duty on the District Panchayat Officer after receipt of the proposal for appointment of Secretary of Grama Panchayat to be satisfied that the candidate selected by the Grama Panchayat possessed the prescribed qualification and is eligible for the post of Secretary and that the selection has been made in accordance with the rule and further that the remuneration proposed to be paid is reasonable and on being so satisfied he has the right to accord approval to the proposal. If, on the other hand, the District Panchayat Officer finds that the person selected is disqualified for the post of Secretary or that the remuneration proposed to be paid is excessive, then he can direct the Grama Panchayat to select another candidate in the prescribed manner or re-consider the remuneration and re-submit the proposal. It is only after receipt of order of approval of the District Panchayat Officer, the Grama Panchayat is entitled to appoint the Secretary of the Grama Sasan as provided in Rule 213(e) of the Rules. Admittedly, there is no provision for withdrawing the approval granted and a Secretary of a Grama Panchayat can be removed in accordance with Rule 216 of the Rules. There has been no removal in terms of Rule 216. The point that arises for consideration is whether in the absence of any provision for withdrawing approval, has the District Panchayat Officer who is the approving authority any power to withdraw the approval once granted ? Learned Additional Government Advocate relies upon Sec. 22 of the Orissa General Clauses Act and contends that Rule 213 having conferred a power on the District Panchayat Officer to approve an appointment, necessarily confers the power to withdraw the said approval if he is satisfied that the approval in question is not in accordance with law. Sec. 22 of the Orissa General Clauses Act provides that if by an Orissa Act, a power to make or issue notifications, orders, schemes, rules, bye laws or forms is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notifications, orders, schemes, rules, bye-laws or forms so made or issued. A power to accord approval, therefore, would bring within its sweep the power of withdrawal of the same particularly when the approval had been granted not being aware of the fact that in law the approval could not have been granted in terms of the Government notification. Even apart from Sec.22 of the Orissa General Clauses Act on which the learned Addl. Even apart from Sec.22 of the Orissa General Clauses Act on which the learned Addl. Government Advocate places reliance, when an authority accords approval on incorrect or insufficient datas and later on the correct informations are brought to his notice, on the basis of which he comes to the conclusion that the approval could not have been granted, he has the right to withdraw the approval in question. An authority while exercising the power under a statute passes an order on certain incorrect information has the right to rectify the mistake when correct informations are brought before him. In view of the Government resolution to appoint full-time Secretary of Grama Panchayat, the petitioner could not have been continued as the Secretary of the Grama Panchayat on accepting the job of Extra-Departmental Branch Postmaster. Since the District Panchayat Officer erroneously accorded the approval not being aware of the aforesaid state of affairs, he had to withdraw the said approval once he came to know the fact that the petitioner’s continuance as Extra-Departmental Branch Postmaster disentitled him to be approved as a permanent Secretary of a Grama Panchayat. We, therefore, see no infirmity with the impugned order of disapproval under Annexure-12.” 8. In view of the authoritative pronouncement of this Court in the case of Purnachandra Sahoo (supra), the irresistible conclusion is that the power to accord approval takes within its sweep power of withdrawal of the same. The view taken by the Collector, Cuttack cannot be said to be perfunctory or flawed. In view of the same, no case is made out for interference. Accordingly, the writ petition is dismissed.