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2020 DIGILAW 503 (HP)

Bihari Lal v. State of Himachal Pradesh

2020-08-19

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - By way of this petition, the petitioner has prayed for quashing of order dated 18.01.2010 (Annexure P-3), vide which appointment of the petitioner as Panchayat Sahayak has been struck down by the Appellate Authority in an appeal filed under Section 148 of the Himachal Pradesh Panchayat Raj Act, 1994, read with Rule 143 of the Himachal Pradesh Panchayat Raj Rules, by the private respondent, inter alia on the ground that near relative of the petitioner Smt. Neelam Kumari, wife of the real brother of the petitioner was a Ward Member of the concerned Panchayat at the relevant time, which rendered the petitioner ineligible to be appointed in the Panchayat in terms of the provisions of Rule 137 of Himachal Pradesh Panchayati Raj Rules, 1997. 2. Brief facts necessary for the adjudication of the present petition are as under:- Vide Notification dated 26.06.1999 (Annexure P-1), Rural Development Department of the Government of Himachal Pradesh initiated process for appointment of Gram Panchayat Sahayak in the Gram Panchayats, by inviting applications from eligible candidates. Petitioner applied for the post in issue for Gram Panchayat Drekdi. The interview was conducted on 01.11.1999 and petitioner was offered appointment of Panchayat Sahayak, by Pradhan of the concerned Gram Panchayat, vide Annexure P-2, dated 01.01.1999. 3. Though, documents to this effect are not on record, however, this Court has been apprised that appointment of the petitioner was challenged by the private respondent before learned Erstwhile Himachal Pradesh Administrative Tribunal and learned Tribunal vide order dated 23.05.2006 held that the original application was not maintainable as the remedy available to the original applicant was under the provisions of Himachal Pradesh Panchayati Raj Act. Immediately thereafter an appeal was filed by private respondent herein, assailing the appointment of the petitioner under Section 148 of Himachal Pradesh Panchayati Raj Act. The appeal so filed stands allowed by the Appellate Authority, by setting aside the appointment of the petitioner on the ground that the same was in violation of the provisions of Rule 137 of the Himachal Pradesh Panchayati Raj Act, which barred the appointment of nears and dears of the office bearers and servants of the Panchayat concerned for appointment in the concerned Panchayat. Feeling aggrieved the petitioner has filed this petition. 4. Feeling aggrieved the petitioner has filed this petition. 4. Learned Counsel for the petitioner has argued that the impugned order is not sustainable in the eyes of law as the Appellate Authority has erred in not appreciating that the petitioner was not ineligible to be appointed in the Gram anchayat as no relative of his, as mentioned in Rule 137 of the Himachal Pradesh Panchayati Raj Act, was an office bearer of the Panchayat concerned. He has argued that Rule 137 of the Act nowhere provides that a person shall be ineligible to be appointed in a Panchayat, if the wife of his real brother is an office bearer of the Panchayat. He submits that as the definition of family members is explicitly stated in the provisions of Rule 137, the Appellate Authority erred in introducing in the said Rules, something which was not incorporated therein. On these basis, he has argued that the impugned order be set aside. 5. On the other hand, learned Counsel for the respondents have argued that there was no infirmity in the order passed by the Appellate Authority as it had correctly interpreted the provisions of Rule 137 of the 1997 Rules, because by no stretch of imagination, it could be said that the framers of the legislature did not had it in their mind that a 'Devar' would also be ineligible to be appointed in case his real 'Bhabi' was an officer bearer of the Panchayat. They submit that even if there is no express mention of 'Bhabi' or brother's wife in Rule 137, then the same has to be read into the provisions of the Rules so as to give full effect to the intent of the Rules which is to ensure that nears and dears of office bearer of the Panchayat are not appointed in the said panchayat. 6. I have heard learned Counsel for the parties and have also gone through the impugned order as well as the documents which stand appended with the pleadings. 7. It is not in dispute that the wife of the real brother of the petitioner was a Ward Member of the Panchayat concerned when the petitioner was appointed as a Panchayat Sahayak, in Gram Panchayat Drekdi. Rule 137 of the Himachal Pradesh Panchayat Raj Act, Rules 197, reads as under:- " 137. 7. It is not in dispute that the wife of the real brother of the petitioner was a Ward Member of the Panchayat concerned when the petitioner was appointed as a Panchayat Sahayak, in Gram Panchayat Drekdi. Rule 137 of the Himachal Pradesh Panchayat Raj Act, Rules 197, reads as under:- " 137. Other officers and servants of Panchayats (section 135 of the Act)- (1) the Panchayats subject to the availability of funds in the budget, may by a resolution propose to the Director or any other officer authorised, the number of employees required by it and salary and allowances to be paid to them and duties to be assigned to each of them. The Director or any other officer authorised by him nay allow the appointment of such servant as he considers necessary for the efficient discharge of the duties with following conditions:- " No person shall be employed by a Panchayat, if he is a near relative (father, grand father, father-in-law, maternal or paternal uncle, son, grandson, son-in-law, brother, nephew, brother-in-law, wife, sister, sister's husband, mother, daughter, niece, mother-in-law, daughter-in-law and husband)of any of its members or if he has been convicted of any criminal offence involving moral turpitude. No employee of the Panchayat shall be retained in service after he has attained the age of 58 years". A perusal of this Rule demonstrates that a person is barred from being employed by a Panchayat, if he is a near relative of any of the members of the Gram Panchayat. Though, if the Rule is read myopically, as learned Counsel for the petitioner wants the Court to read the same, the wife of real brother of a potential candidate has not been expressly mentioned in the said Rules. But taking into consideration the relations which stand mentioned therein, the "wife" of "real brother" of a potential candidate has to be read into the said Rules. This, I say for the reason that the "husband" of the "sister" of a potential candidate, if member of a Gram Panchayat, renders the potential candidate ineligible to be engaged or employed by the Panchayat. If that is the case, then it cannot be construed that in the event of wife of the real brother of a potential candidate being a member, these rigors will not apply. If that is the case, then it cannot be construed that in the event of wife of the real brother of a potential candidate being a member, these rigors will not apply. Therefore, this Court concurs with the findings returned by the Appellate Authority that the list of relatives mentioned in Rule 137, supra, is illustrative and no exhausted. 8. Section 12 of Himachal Pradesh General Clauses Act, 1968 provides that in all Himachal Pradesh Acts, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females. Rule 137 of the Himachal Pradesh Panchayati Raj Rules 1997, while referring to the near relatives, refers to "sister" and "sister's husband". As Section 12 of the Himachal Pradesh General Clauses Act, 1968 provides that the words importing the masculine gender shall be taken to include females, then its natural corollary is that words importing female gender shall be taken to include masculine gender also. Therefore, "sister's husband" for the purpose of this particular Rule has also be read as "brother's wife". This is for the reason that when "sister's husband" being an office bearer of the Gram Panchayat is an ineligibility criteria for a prospective candidate to be appointed as an officer or servant of the Panchayat, then its natural corollary is that "brother's wife" being an office bearer also has to be construed and read similarly. 9. Even otherwise, the intent of the provisions of Rule 137 is to rule out the possibility of there being any nepotism in the selection of employees of the Gram Panchayat. It stands specifically mentioned in the Rule that a person shall not be eligible to be engaged as an employee of the Panchayat, if his near relative is a member of the Gram Panchayat. In the present case, wife of real brother of the petitioner was a Ward Member. If the provisions of Rule 137 are read down myopically, then in my considered view, it will defeat the very spirit and the intent which is behind the Rule 137 of the Himachal Pradesh Panchayati Raj Rules, 1997. Therefore also, the Rule has to be interpreted in a manner that the purpose which is behind the incorporation of the said Rule is achieved and fulfilled. 10. Therefore also, the Rule has to be interpreted in a manner that the purpose which is behind the incorporation of the said Rule is achieved and fulfilled. 10. In view of the findings returned hereinabove, as this Court does not finds any ambiguity in the order passed by learned Appellate Authority, this petition being devoid of any merit is dismissed. Pending miscellaneous applications, if any, also stand dismissed. Interim order, if any, stands vacated.