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2019 DIGILAW 2616 (ALL)

Jayveer v. State Of U. P.

2019-11-21

ANJANI KUMAR MISHRA

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JUDGMENT : 1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. On the previous occasion, time had been granted to the learned Standing Counsel to obtain instructions. Today, on the matter being called out, Learned Standing Counsel has stated that despite a communication having been sent, no instructions have been received from the respondents. 3. Although no notice has been issued to respondent no:3 in the writ petition, the same is being decided finally, in view of the order proposed to be passed. In case the said respondent feels aggrieved, it shall be open for her to apply for recall of this order. 4. The writ petition seeks a writ of certiorari, quashing the order dated 24.07.2018, passed by the respondent no. 2, the District Magistrate, Shahjahanpur, under Section 12-J of the U.P. Panchayat Raj Act. 5. It appears that the elected Pradhan of Gram Panchayat Munni Khera, District Shahjahanpur, was incapable of discharging his functions, as such, on account of his incarceration. Therefore, the respondent no. 3 has been nominated to function as Pradhan, by the order impugned. 6. The order is challenged on the ground that the post of Pradhan, in question, was reserved for a member of the Scheduled Caste. The respondent no. 3 who has been nominated to discharge the powers and functions of Pradhan, belongs to the General Category. At least three mmembers of Gram Panchayat Munni Khera belong to the Scheduled Caste. It is, therefore, contended that one of these three Gram Panchayat members, belonging to the Scheduled Caste should have been nominated by the District Magistrate under Section 12-J of the Act, to exercise the powers and duties of Pradhan. 7. It is also submitted that the impugned order is contrary to the principles laid down by the Division Bench in Shyamu Vs State of U.P. and others, 2010 (8) ADJ 459 . The District Magistrate failed to confer with the elected members of the Gram Panchayat and has passed the impugned order on the basis of his opinion alone. 8. It is also submitted that the impugned order is contrary to the principles laid down by the Division Bench in Shyamu Vs State of U.P. and others, 2010 (8) ADJ 459 . The District Magistrate failed to confer with the elected members of the Gram Panchayat and has passed the impugned order on the basis of his opinion alone. 8. To defend the impugned order reliance has been placed by Learned Standing Counsel upon Udaiveer Vs State Election Commission of UP, 2009 (106) RD 151 , which holds that the District Magistrate while exercising the powers conferred by Section 12-J of Act should necessarily ascertain the opinion of the elected members of the Gram Panchayat before passing order under Section 12-J of the said Act. 9. Learned Standing Counsel has also placed reliance on Brij Rani Singh versus State of U.P. 2000 volume 2 AWC 1775 specially paragraph 21, relevant portion whereof, reads as follows:- " The Legislature was fully conscious of the fact that there may be occasions and reasons for the Pradhan which may incapacitate him from discharging his duties and functions as Pradhan and in such a situation the Up-Pradhan has been permitted to exercise such powers and the exercise of such powers by Up-Pradhan is only an arrangement in temporary vacancy in the office of Pradhan which would not mean that Up-Pradhan has been elected as Pradhan." 10. In my considered opinion, the judgment in Brij Rani Singh is not applicable in the facts and circumstances of the case at hand. On a pointed query by the court, counsel for the parties concede that it is not the Up-Pradhan who has been nominated to function as Pradhan as a temporary arrangement, permissible under Section 12-J of the Panchayat Raj Act. A member of the Gram Panchayat belonging to the general category has been nominated by the District Magistrate to function as Pradhan. 11. In my considered opinion, once it is admitted that the post of Pradhan, was of a seat reserved for a member of the Scheduled Caste the contention of counsel for the petitioner has substance especially because members belonging to the Schedule Caste were available for being nominated to discharge the powers and functions of Pradhan under Section 12-J of the Act. They should have been preferred over a member belonging to the general category as the seat in question was one reserved for a Scheduled Caste. This view is supported by the observation made by the Division Bench in Shyamu (supra) in paragraph 16 of the judgment which is being extracted below with the relevant portion thereof underlined by me, for emphasis : "16. The question is whether such opinion given by the elected members would be binding on the Prescribed authority. If such as interpretation is given, then the power exercised by the Prescribed Authority under section 12-J of the Act will have to be read subject to the opinion of other members. would not be a correct interpretation of the law. There could be a possibility of violation of reservation policy, and/or a person may pressurize other members to propose his name, and or the like. ........." 12. Since the judgment in Udaiveer (supra), cited by learned Standing Counsel provides that while exercising the power under Section 12-J of the said Act, the District Magistrate should obtain the opinion of the elected members of the Gram Panchayat, which view has been affirmed in the case of Shyamu supra with the stipulation that the said opinion is not absolutely binding, and such an exercise has not been undertaken by the District Magistrate, prior to passing the impugned order, in my considered opinion, the impugned order is not liable to be sustained. At least, there is no mention of any such exercise having been resorted to, in the order impugned. 13. Accordingly and in view of the above, the writ petition is allowed. The impugned order dated 24.07.2019 is hereby set aside and the matter is remitted back to the District Magistrate respondent no. 2 to pass a fresh order under Section 12-J of the Panchayat Raj Act, keeping in mind what has been stated in the body of this judgment, above. No order as to cost.