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2018 DIGILAW 496 (MP)

Sanjay Kumar v. State of M. P.

2018-05-15

HEMANT GUPTA, VIJAY KUMAR SHUKLA

body2018
JUDGMENT Shukla, J.--1. In the present Intra Court appeal, a challenge has been made to the order dated 23.4.2018, passed by the learned Single Judge whereby the petition filed by the appellant has been dismissed with an observation directing the respondents to complete the selection process, which was initiated in December, 2007. 2. The facts adumbrated in nutshell are that the petitioner and the private respondents submitted their candidature along with other eligible candidates for the post of Panchyat Karmi pursuant to an advertisement dated 13.12.2007. Thereafter by the order of Collector communicated through Deputy Director, Panchayat and Social Welfare dated 16.4.2008, a decision was taken to appoint Shri Sanjay Kumar. Being aggrieved with the aforesaid decision, Dharmendra Kumar filed an appeal before the Commissioner, Shahdol Division, Shahdol. The Commissioner interfered with the order of the Collector on the ground that the Collector had no jurisdiction to provide additional criteria for providing additional marks for computer diploma, as giving bonus marks on the basis of higher qualification is contrary to the circular issued by the State Government. Since the selection was made by giving bonus marks, the Commissioner disapproved the said selection and remitted the matter back to the authorities with direction to draw a fresh select list on the basis of merit list drawn as per the qualification. 3. The learned Single Judge after taking into consideration the provisions of section 86 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the Adhiniyam, 1993) held that the Collector could not have prescribed additional criteria for grant of bonus marks based on computer diploma or higher education contrary to the Panchayat Scheme issued by the State Government. 4. Learned counsel for the appellant also submitted that since the Gram Panchayat failed to make appointment within stipulated period as per the Government circular dated 13.8.2007 and therefore, in exercise of powers under sub-section (2) of section 86 of Adhiniyam, 1993, the Collector was competent to prescribe additional qualification for appointment. He refers to the first part of the Scheme dated 13.8.2007, specially Clause-3, wherein it is mentioned that the Gram Panchayat can prescribe any other desirable eligibility condition in addition to the qualification prescribed by passing a resolution. He refers to the first part of the Scheme dated 13.8.2007, specially Clause-3, wherein it is mentioned that the Gram Panchayat can prescribe any other desirable eligibility condition in addition to the qualification prescribed by passing a resolution. Learned counsel for the appellant also referred circular dated 13.8.2007, the Collector could have prescribed the additional qualification or bonus marks for additional qualification but upon perusal we find that the circular relied by the appellant dated 13.8.2007 also does not confer any power on the Collector to prescribe such condition in addition to the conditions of the scheme.However, even otherwise the circular would not override the statutory provisions of section 86 of Adhiniyam ,1993. It is established law that executive instructions would not override the statutory provisions. A reference may be made to the judgments passed by the apex Court in the case of State of Tamil Nadu v. M/s Hind Stone etc. [ AIR 1981 SC 711 ] and in the case of Ajaya Kumar Das v. State of Orissa and others [ (2011)11 SCC 136 ]. 5. Admittedly, in this case the impugned condition has been prescribed by the Collector by its order dated .7.11.2007. Learned counsel for the appellant also submitted that as per the provisions of section 86(2), the State Government or the prescribed authority shall have all necessary powers as powers are given to the Gram Panchayat. He also placed reliance on the judgment passed by the Full Bench in the case of Pawan Rana v. State of M.P. and others, [ 2009(3) JLJ 276 = 2009(4) M.P.L.J. 66 (FB)]. 6. To appreciate the contentions of the learned counsel for the appellant, it is apposite to refer the provisions of section 86 of Adhiniyam, 1993 as under : "86. Power of State Government to issue order directing Panchayat for execution of works in certain cases. - [(1) The State Government or the prescribed authority may, by an order in writing, direct any Panchayat to perform any duty imposed upon it, by or under this Act, or by or under any other law for the time being in force or any work as is not being performed or executed, as the case may be, by it and the performance or execution thereof by such Panchayat is, in the opinion of the State Government or prescribed authority, necessary in public interest]. (2) The Panchayat shall be bound to comply with direction issued under sub-section (1) and if it fails to do so [the State Government or the prescribed authority shall have all necessary powers to get the directions complied with at the expense, if any, of the Panchayat] and in exercising such powers it shall be entitled to the same protection and the same extent under this Act as the Panchayat or its officers or servants whose powers are exercised." The provisions of section 86 are enacted conferring the powers to the State Government or the prescribed authority to issue order directing Panchayat for execution of works in certain cases. Sub-section (1) of section 86 reads that the State Government or the prescribed authority either may, by an order in writing, direct any Panchayat to perform any duty imposed upon it, by or under this Act. or by or under any other law for the time being in force or any work as is not being performed or executed, as the case may, by it and the performance or execution of the said work by such Panchayat is necessary in public interest in the opinion of the State Government or the prescribed authority. Thus, the provisions of sub-section (1) is conferring power on the State Government or the prescribed authority to issue necessary orders to get the work done or to perform the duties as imposed upon the Gram Panchayat by order under this Act of by any other law and the other condition is that in the opinion of the State Government or the prescribed authority, the said work should be necessary in public interest. Thus, in the present case, since the Gram Panchayat fails to appoint Panchayat Karmi as per the Scheme passed by the State Government under the provisions of section 70 read with section 69 of Adhiniyam 1993, therefore, the prescribed authority i.e. Collector passed an order for appointment. 7. The question which has arisen for consideration is whether the Collector could have added a condition in the advertisement for grant of additional marks of bonus given for higher education and computer diploma. 7. The question which has arisen for consideration is whether the Collector could have added a condition in the advertisement for grant of additional marks of bonus given for higher education and computer diploma. Sub-section (2) of section 86 cast a duty on the Panchayat to comply with the direction issued under sub-section (1) and if it fails to do so, the State Government or the prescribed authority shall have all necessary powers to get the directions complied with. Thus, the provisions of section 86 (1) and section 86 (2) are to be read conjointly. On a conjoint reading of the provisions of sub-section (1) and sub-section (2) of section 86 an inevitable conclusion is that the State Government or the prescribed authority has been conferred with the power to issue orders to the Gram Panchayat to carry out any work or to perform any duty as required under the Act or any other law if the same is considered to be necessary to be discharged by Gram Panchayat in public interest by the State Government or the prescribed authority. Thus, the power to get executed the work or issue directions to discharge the duty by Gram Panchayat is conferred on the State Government or the prescribed authority. Sub-section (2) states that the Panchayat shall be bound to comply with the direction issued by the State Government or the prescribed authority under sub-section (1) and if the Panchayat fails to comply with the direction of the State Government or the prescribed authority as the case may be, the said authority will have all the powers to get the direction complied with and they will be entitled to the same protection as is extended to the Panchayat or its office bearers. Section 87 confers power on the State Government to dissolve the Panchayat in case Panchayat commits default in discharge of his duty or there is any abuse of powers by the Gram Panchayat. Thus, the object of the Legislature in making such a provision in section 86 (2) is to ensure that if the Panchayat fails to perform any particular duty conferred on it under the Act despite directions issued by the State Government or the prescribed authority under section 86 (1), the State Government or the prescribed authority must have the required powers to get the directions complied with. Therefore, under section 86 (2), the State Government or the prescribed authority can issue the direction to appoint a Panchayat Karmi in case Gram Panchayat fails to make such appointment, despite directions for such appointment issued by the State Government or the prescribed authority. 8. The contention of the appellant cannot be accepted that by virtue of the provisions of sub-section (2) of section 86, the Collector could have prescribed additional qualification while making appointment of Panchayat Karmi in addition to the qualification prescribed by the State Government in Panchayat Karmi circular issued under the provisions of section 70 read with section 69 of Adhiniya, 1993. The Full Bench in the case of Pawan Rana (supra), has held that the State Government or the prescribed authority can direct the Chief Executive Officer of the Janpad Panchayat to appoint a Panchayat Karmi in case the Gram Panchayat fails to make such appointment but it does not lay down that the Collector while exercising the powers under sub-section (2) of section 86 can prescribe additional qualifications or criteria for grant of bonus marks in addition to the qualification and the marks provided in the advertisement. 9. In view of the aforesaid conspectus of the facts and law, we do not find any error in the order passed by the learned Single Judge. Accordingly, the writ appeal is dismissed.