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Madhya Pradesh High Court · body

2017 DIGILAW 286 (MP)

VDhiraj Banke v. State of M. P.

2017-02-23

SANJAY YADAV

body2017
ORDER : Sanjay Yadav, J. 1. With consent of learned counsel for the parties the matter is heard finally. 2. Petitioner calls in question the correctness of Order dated 24.2.2010; whereby the Commissioner, Narmadapuram Division, Hoshangabad has set aside the appointment of the petitioner as Panchayat Karmi from Panchayat Maniyakhedi, Janpad Panchayat, Timarni on the ground of his being a relative of a sitting Panch. 3. Relevant facts briefly are that recourse to appointment of Panchayat Karmi, Gram Panchayat Maniakhedi, Timarni has taken in pursuance to order dated 4.6.2009 passed by Collector, Hoshangabad which culminated in order of appointment of the petitioner being more meritorious, on 8.9.2009. However, the resolution was set aside by the Collector on the finding that the petitioner's mother was a Panch when the decision was taken for appointment of Panchayat Karmi, who tendered her resignation after said date on 27.6.2009. Collector ordered for fresh selection which was taken recourse. As the petitioner had 73.2 % in comparison to respondent No. 4 who had 72.6 %, the petitioner was again appointed in a fresh selection process by order dated 1.10.2009. On an exception being taken thereof by respondent No. 4 in appeal, the impugned order came to be passed. 4. The main reason which weighed with the Appellate Authority as is evident from the impugned order is that since the petitioner was ineligible in the first selection because of his mother being a Panch, the Authority concerned ought to have taken into consideration only those application which were received in first selection process and should not have resorted to fresh selection. This is evident from following findings: ^^bl laca/k esa ;g Li"V gS fd mRrjoknh dz0 03 dh ekWa Jherh }kjdk ckbZ xzke iapk;r efu;k[ksMh esa iap Fkah ,oa bl fookfnr fu;qfDr ds fy;s izFker% tks vkosnu i= cqyk;s Fks] ml le; og iap in ij FkhA vkosnu dh vafre frfFk fnukad 30-06-2009 dks mudk R;kxi= Lohdkj ugha fd;k x;k FkkA QyLo:i mRrjoknh dzekad 03 }kjk izLrqr vkosnu i= fof/k vuqlkj lgh vkosnu i= ugha gSA ,slh fLFkfr esa izFke pj.k esa gh mRrjoknh dzekad 03 dk vkosnu i= fujLr dj esfjV cukdj 'kklu funsZ'kksa ds vuq:i dkjZokbZ dh tkuh pkfg, Fkh] ijUrq ;gkWa ij iapk;r }kjk =qfV iw.kZ rjhds ls mRrjoknh Jh ckads dk uke lfpo gsrq izLrqr fd;kA QyLo:i DysDVj }kjk dk;kZy;hu Kkin dzekad 6139@iapk@ftia0@2009&10 fnukad 07-08-2009 ls izLrko dk vuqeksnu bl vk/kkj ij ugha fd;k fd mRrjoknh dzekad 03 Jh /khjt ckads dh ekWa Jherh }kjdkckbZ xzke iapk;r eqfu;k[ksMh dh iap gSA QyLo:i bl vkns'k esa ;g funsZ'k fn;s fd 'kklu funsZ'kksa ds vuq:i iqu% xzke iapk;r efu;k[ksMh esa iap;krdehZ dh fu;qfDr laca/kh dkjZokbZ djsaA ftyk dysDVj ds bl vkns'k dh ea'kk Li"V gS fd xzke iapk;r }kjk tks vkosnu i= eaxk;s x;s Fks mlesa mRrjoknh dzekad 03 Jh /khjt ckads@Jh dkarkizlkn }kjk izLrqr vkosnu i= fof/klaxr ugha Fkk D;ksafd mRrjoknh dz0 03 dh ekWa mDr xzke iapk;r esa iap FkhA vr% ftyk dysDVj us bl vkosnu dks fujLr dj fu;qfDr dh dkjZokbZ ds funsZ'k fn;s gSa ijUrq ;gkWa ij tuin iapk;r }kjk bu funsZ'kksa ds foijhr iqu% foKfIr tkjh dj ogha vkosnu i= izkIr dj iz'uk/khu fu;qfDr dh dkjZokbZ izkjaHk dh tcfd iapk;r dks Jh /khjt ckads ds vkosnu ds vykok tks vkosnu izkIr gq;s Fks mudks esfjV ds vk/kkj ij fopkj esa fy;k tkuk FkkA blls Li"V gS fd tuin iapk;r }kjk dysDVj ds funsZ'kksa ds foijhr tkdj mRrjoknh dzekad 03 dk fookfnr fu;qfDr vkns'k tkjh djk;k x;k gS] tks fd fof/klaxr ugha gSA vihy vkosnu esa rF; ,oa vihykFkhZ ds fo}ku vfHkHkk"kd }kjk izLrqr ;g rdZ fd iz'uk/khu fu;qfDr vuSfrd izHkko dk lwpd gSA bl laHkkouk dks Hkh mDr vkyksd esa [kkfjt ugha fd;k tk ldrk gSA** 5. It is contended on behalf of the petitioner that the Appellate Authority misread the order by Collector who in clear terms directed for a fresh selection process. It is contended on behalf of the petitioner that the Appellate Authority misread the order by Collector who in clear terms directed for a fresh selection process. It is further urged that even if it is to be accepted for argument sake that the petitioner's mother was a Panch then also the petitioner cannot be deprived of the appointment as Panchayat Karmi. It is urged that second proviso to sub-section (1) of Section 69 of Adhiniyam 1993 prohibits appointment of Panchayat Secretary and not Panchayat Karmi. Petitioner relies on the decision in Prahalad Singh Patel v. State of M.P. and others [ 2000 (1) MPHT 89 ]. 6. Second proviso to sub-section (1) of Section 69 of Adhiniyam added by amendment Act No. 2 of 1997 was in the following terms: "Provided further that a person shall not hold charge of a Secretary of Gram Panchayat, if such a person happens to be relative of any office bearer of the concerned Gram Panchayat." 7. It has been held in Prahlad Singh Patel (supra) that: "12. Petitioners claim that they were earlier appointed as Panchayat Karmis by their respective Gram Panchayats and, later on, were appointed as its Secretaries. Second proviso to Section 69 (1) of the Act being mandatory in character; petitioners cannot be allowed to hold charge of the Secretaries. Still on my conclusion that Panchayat Karmis and Panchayat Secretaries are not synonymous with each other, as also there is no legislative or other impediment in continuance of such persons as Panchayat Karmis appointed in accordance with law, they may not be allowed to hold the charge of the Secretaries, but they cannot be removed from the office of Panchayat Karmi except as a measure of punishment as provided under Clause 7 of the Panchayat Karmi Yojna or any other ground permissible under the law. It is made clear that I have not gone into the question of validity of the appointment of petitioners as Panchayat Karmi. 13. Result of the aforesaid discussion is that the petitioners cannot be allowed to hold charge of the Panchayat Secretary and as such the impugned decision of the respondents communicating to the petitioners that they are disqualified to perform the function of the Panchayat Secretary cannot be interfered with. 13. Result of the aforesaid discussion is that the petitioners cannot be allowed to hold charge of the Panchayat Secretary and as such the impugned decision of the respondents communicating to the petitioners that they are disqualified to perform the function of the Panchayat Secretary cannot be interfered with. However, petitioners cannot be prohibited from functioning as Panchayat Karmis only on the ground that they are relative of office bearer of Gram Panchayat. This may not be construed to mean that respondents cannot go into the question of validity of the appointment of petitioners as Panchayat Karmis. However, respondents cannot hold the petitioners appointment as Panchayat Karmi illegal only on the ground that they are relative of office bearer of Gram Panchayat. 8. Thus, there exist no statutory bar for appointment of Panchayat Karmi even if any of his relatives are office bearer of concerned Panchayat, there is no prohibition for his appointment as Panchayat Karmi. 9. The impugned order when is adjudged on the anvil of the decision in Prahlad Singh Patel (supra) cannot be given the stamp of approval. 10. Consequently, the impugned order is set aside. Interim order made absolute. Petition is allowed to the extent above. No costs.