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2018 DIGILAW 1030 (MP)

Motilal Vishwakarma v. State of M. P.

2018-12-17

S.K.SETH, VIJAY KUMAR SHUKLA

body2018
JUDGMENT Shukla, J.--1. The present intra Court appeal is filed against the order dated 22.10.2018, passed by the learned Single Judge,whereby the writ petition challenging the order dated 20.9.2018, passed by the respondent No. 2 State Minister, Panchayat and Rural Development Department, Bhopal remained unsuccessful. 2. The facts in short are that in pursuant to the advertisement issued by Gram Panchayat Gohandra, Janpad Panchayat Kotma, District Anooppur, appellant Motilal Vishwakarma and respondent No. 8 Rajendra Kumar Barman applied for the post of Panchayat Karmi. The respondent No. 8 has secured 55.4% of marks in High School whereas the appellant has secured 46.8%. At the time of consideration, an affidavit was filed by Up-Sarpanmch that respondent No. 8 is his nephew and, therefore, his case was not considered, though the appellant/petitioner was lower in merit was appointed as Panchayat Karmi. The appellant was appointed as Panchayat Karmi by the Gram Panchayat vide resolution dated 7.9.2007. The respondent No. 8 filed an appeal before the Sub Divisional Officer against the aforesaid resolution. The said authority found that the resolution appointing the appellant as Panchayat Karmit was illegal and set aside the resolution dated 7.9.2007 and directed the Panchayat to proceed in accordance with the instructions of the Government after including the name of the petitioner therein in the process. Against the said order dated 30th September, 2008, passed by the Sub Divisional Officer, the appeal filed by the appellant was dismissed by order dated 11.5.2008. The appellant preferred a revision before the Commissioner, Shahdol Division, Shahdol which was allowed by order dated 24.12.2009, which was challenged in the writ petition comprising Writ Petition No. 504/2010. The revision was allowed on two grounds by the Commissioner that the said appeal/revision ought to have been filed within a period of 30 days but it was filed before the Sub Divisional Officer beyond the period of limitation, which was wrongly entertained by the Sub Divisional Officer and that against the resolution of the Gram Panchayat, no appeal or revision was maintainable before the Sub Divisional Officer and therefore, the Sub Divisional Officer erred in entertaining such appeal. 3. 3. Since the appellant was appointed in pursuant to the resolution of Gram Panchayat therefore, in the light of the judgment passed by the Division Bench in the case of Devidayal Raikwar v. State of M.P. and others [ 2009 (1) JLJ 7 = 2008(4) MPLJ 647 ], learned Single Judge disposed of writ petition (W.P.No. 504/2010) filed by respondent No. 8 granting permission to him to withdraw the petition with liberty to challenge the appointment of the present appellant by filing an appeal before the concerned Sub Divisional Officer. 4. Thereafter, the respondent No. 8 filed an appeal before the Sub Divisional Officer which was allowed. The appellant challenged the said order before the Collector in appeal. The Collector allowed the appeal and the case was decided in favour of the present appellant by order dated 18.8.2010. 5. Being aggrieved by the order of the Collector, respondent No. 8 challenged the said order before the Commissioner and his appeal was allowed by order dated 10.5.2013. The petitioner challenged the said order before this Court in Writ Petition No. 9762/2013, which was disposed of by order dated 3.6.2013 directing the petitioner to avail alternative remedy before the State Minister/ respondent No.2, who was directed to decide the same on merit. Thereafter the revision filed by the appellant before the respondent No. 2 was dismissed by order dated 20.9.2018 and the respondent No. 8 was directed to be notified as a Secretary under section 69(1) of the M.P.Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as “ the Adhiniyam”) and it was held that he will not be entitled for the salary on the principle of “no work no pay”. The said order was challenged in the writ petition and by the impugned order, the learned Single Judge dismissed the writ petition. 6. Learned counsel for the appellant raised many questions regarding the maintainability of appeal against the resolution and second appeal. However, the respondent No. 8 was directed to file appeal by the High Court while disposing of W.P.No. 504/2010 against the order of appointment coupled with the resolution appointing the present appellant in the light of the judgment passed in the case of Devidayal Raikwar (supra). The said order was not challenged by the appellant and has attained finality. 7. However, the respondent No. 8 was directed to file appeal by the High Court while disposing of W.P.No. 504/2010 against the order of appointment coupled with the resolution appointing the present appellant in the light of the judgment passed in the case of Devidayal Raikwar (supra). The said order was not challenged by the appellant and has attained finality. 7. It is not in dispute that the respondent No. 8 was more meritorious than the appellant as he had secured 55.4% marks in High School whereas the appellant/petitioner had secured only 46.8% marks and his candidature was rejected on the ground that he was nephew of Upsarpanch. There is no bar for appointment of Panchayat Karmi if such person happens to be a relative of any officer bearer of the concerned Gram Panchayat. The bar under section 69 of the Adhiniyam deals with the appointment of Panchayat Secretary and not Panchayat Karmi. It is apposite to quote the relevant portion of section 69 : “69 Appointment of Secretary and Chief Executive Officer. - (1) The State Government or the prescribed authority may appoint a Secretary and one or more Assistant Secretaries for a Gram Panchayat, who shall discharge such functions and perform such duties as may be assigned to them by the State Government or prescribed authority : Provided that the person holding the charge of a Secretary of Gram Panchayat immediately before the commence-ment of this Act shall continue to function as such till a Secretary is appointed in accordance with this section. Provided further that a person shall not hold charge of a Secretary or Assistant 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-inlaw, mother-in-law, brother-in-law, sister-in-law, son-inlaw, daughter-in-law.” 8. From reading of the aforesaid provision it is crystal clear that the proviso makes a bar to the extent that a person shall not hold charge of the Secretary of Gram Panchayat, if such a person happens to be a relative of any office bearer of the concerned Gram Panchayat. We do not find any merit in the contention of the appellant that the respondent No. 8 was disqualified to be appointed as a Panchayat Karmi. 9. We do not find any merit in the contention of the appellant that the respondent No. 8 was disqualified to be appointed as a Panchayat Karmi. 9. The provisions of section 69 of the Adhiniyam does not apply to the Panchayat Karmi but it applies to the Panchayat Secretary. In respect of the Panchayat Secretary the bar is only that he shall not hold the charge of the Secretary of Gram Panchayat, if his relative is an office bearer of the concerned Gram Panchayat. 10. In the case of Yashwant v. State of Madhya Pradesh and others passed in Writ Petition No. 1259/2017 decided on 20.12.2017, the Division Bench has considered the provisions of section 69 of Adhiniyam and held that there is no statutory bar for appointment of Panchayat Karmi if such person happens to be a relative of any office bearer of the concerned Gram Panchayat . The bar under section 69 of the Adhiniyam is only in respect of holding charge of the post of Secretary of the concerned Gram Panchayat. 11. In view of the aforesaid, we do not find any error in the order passed by the learned Single Judge. Accordingly, the writ appeal is dismissed.