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2020 DIGILAW 828 (MP)

Ajeet Singh v. State Of Madhya Pradesh

2020-08-24

S.A.DHARMADHIKARI, VISHAL MISHRA

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JUDGMENT Vishal Mishra, J. - This intra-court appeal under Section 2 (1) of Madhya Pradesh Uchcha Nyayalya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 31.7.2020 passed in Writ Petition No.9614/2020. 2. The appellant has been appointed as an Up-Sarpanch, Gram Panchayat Panchayat Rari Shikarpura, Janpad Panchayat Lahar, District Bhind. The term of the Panchayat of Gram Panchayat has came to an end in the month of March, 2020 and thereafter the Gram Panchayat could not be reconstituted, therefore, a decision has been taken by the State Government to constitute a committee till the Gram Panchayats are reconstituted and accordingly the Collector was appointed as a Prescribed Authority. It is submitted that the Sarpanch of the Gram Panchayat has expired on 30th January, 2020 and appellant being an Up-Sarpanch of the concerning Gram Panchayat Rari Shikarpura was appointed as a Pradhan of the Committee by order dated 31.4.2020. Thereafter an order dated 24.6.2020 has been issued, whereby it was directed that if the Gram Panchayat was reserved for a particular reserved category then the person belonging to the said reserved category should be appointed as Pradhan. It is submitted that in pursuance to the aforesaid letter issued by the State Government now the Zila Panchayat Bhind has issued a letter dated 1.7.2020 to the effect that if the Gram Panchayat is reserved for reserved category then the person of an unreserved category cannot be appointed as a Pradhan, therefore, has asked for sending the modified list for appointment of the Pradhan. 3. The appellant has challenged the aforesaid order by filing a writ petition on the ground that in pursuance to Section 87 (3) (b) (ii) of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as "the Act of 1993"), wherein direction for constitution of the Administrative Committee is made and accordingly by exercising powers under the aforesaid section the order dated 31.4.2020 was passed, whereby the petitioner i.e. appellant was appointed as a Pradhan. In pursuance to the aforesaid provisions the Collector, District Bhind by an order dated 31.4.2020 constituted an Administrative committee and since the Sarpanch has expired, therefore, the petitioner/appellant being the Up-Sarpanch of Gram Panchayat Rari Shikarpura, Janpad Panchayat Lahar, District Bhind was appointed as Pradhan. In pursuance to the aforesaid provisions the Collector, District Bhind by an order dated 31.4.2020 constituted an Administrative committee and since the Sarpanch has expired, therefore, the petitioner/appellant being the Up-Sarpanch of Gram Panchayat Rari Shikarpura, Janpad Panchayat Lahar, District Bhind was appointed as Pradhan. Now the Zila Panchayat has issued a modified order dated 1.7.2020 directed to send the modified list for further action which is beyond the jurisdiction of Zila Panchayat. It is argued that in light of Section 87 of the Act of 1993 as well as the order dated 8.3.2020 passed by the State Government, the petitioner was rightly appointed as Pradhan of the Administrative Committee and in such circumstances the Zila Panchayat was having no power or authority to ask for sending of modified list for appointment of another person as Pradhan. It is argued that the Gram Panchayat was reserved for reserved category, but after completion of the tenure it shall not be presumed to be reserved as per provisions of Rule 6 of the Madhya Pradesh Panchayat Nirvachan Rules, 1995, therefore, appointing the petitioner as a Pradhan was rightly been done and the order does not suffers from any illegality, and therefore, appointing a person as Pradhan, who belongs to a reserved category is totally unwarranted. It is submitted that as per provisions of Rule 3 of M.P. Panchayat (Powers and Functions of Sarpanch and Up-Sarpanch of Gram Panchayat, President and Vice-President of Janpad Panchayat and Zila Panchayat) Rules, 1994 in absence of Sarpanch the Up-Sarpanch shall be exercised the powers and functions of Sarpanch and in the present case since the Sarpanch has already expired in the month of January, 2020, therefore, the petitioner/appellant being an Up-Sarpanch of the concerning Gram Panchayat was having a right to be appointed as Pradhan. The order passed by the Collector, District Bhind appointing appellant as a Pradhan was rightly being passed and subsequent order issued by the Zila Panchayat was totally unwarranted. 4. It is argued that initially the notices were issued by the Writ Court and without awaiting for the reply to be filed by the State Government, the writ petition has been decided finally. 4. It is argued that initially the notices were issued by the Writ Court and without awaiting for the reply to be filed by the State Government, the writ petition has been decided finally. It is submitted that the Writ Court has taken into consideration the provisions of section 38 of the Act of 1993, wherein it is categorically mentioned that if the office of Sarpanch is reserved for members of Scheduled Castes and Scheduled Tribes or Other Backward Classes or for a woman, the officiating Sarpanch shall be elected from amongst the members belonging to the same category. It is argued that in the present case the aforesaid provision has no application at all. The provisions of section 38 of the Act of 1993 are not applicable in the present facts and circumstances of the case. It is not a case where the dissolution of the Panchayat has taken place. It is a case where after completion of the tenure by the Panchayat the petitioner/appellant was appointed as Pradhan. Once the actual tenure of Gram Panchayat has came to an end, therefore, all the office bearers of the Gram Panchayat becomes functus officio. Therefore, by no stretch of imagination it can be said that the Sarpanch was from a reserved category, therefore, the Pradhan is also required to be appointed from a reserved category. It is submitted that the Zila Panchayat was having no authority to call for the modified list for appointment of a Pradhan. The aforesaid aspects of the case were not considered by the Writ Court. The Writ Court has not touched the question regarding the applicability of section 87 (3) (b) (ii) of the Act of 1993 and taking aid of section 38 of the Act of 1993 the writ petition was dismissed. It is submitted that the aforesaid order is perse illegal for the simple reason that no reply was filed by the State Government in the matter, despite of the same the interim relief was already in favour of the petitioner, therefore, without reply of the State Government the petition could not have been decided. It is further submitted that the Writ Court has not considered the arguments advanced by the counsel for the petitioner to the effect that which provisions of the Act of 1993 are applicable in the present facts and circumstances of the case. It is further submitted that the Writ Court has not considered the arguments advanced by the counsel for the petitioner to the effect that which provisions of the Act of 1993 are applicable in the present facts and circumstances of the case. Accordingly, he has prayed for quashment of the impugned order passed by the Writ Court. 5. Per contra, learned Additional Advocate General appearing for the State has supported the order passed by the Writ Court and has argued that a well reasoned and the justified order has been passed by the Writ Court, whereby the petition has rightly been dismissed. It is contended that the appointment of Pradhan on completion of the tenure of the Panchayat is only a stopgap arrangement till the reconstitution of the Gram Panchayat, but the same does not confer any actual right to the appellant or the petitioner. Even otherwise the Gram Panchayat was reserved for reserved category and the Writ Court has rightly considered the provisions of section 38 of the Act of 1993, which will be applicable in case of reserved category Gram Panchayat. There is no dispute with respect to the fact that the Sarpanch of the Gram Panchayat Rari Shikarpura was of a reserved category. Only for the reason that the Sarpanch has expired, the Up-Sarpanch can act as an officiating Sarpanch, but the fact remains that it is not a case of dissolution of Panchayat or creation of actual vacancy in the case. It is a case where the actual tenure of the Panchayat has expired and after actual tenure of the Panchayat the appointment of Pradhan has to be made by the respondents authorities. It is argued that the clarification was being sought by the State Government with respect to the fact that in case where the Sarpanch has expired or because of vacancy in the office of Sarpanch then how the post of the Pradhan is to be filled up and the guidelines have been issued taking the aid of section 38 of the Act of 1993 in pursuance to the orders issued by the State Government dated 24.6.2020 subsequent order has been issued by Zila Panchayat dated 1.7.2020, it cannot be said that the Zila Panchayat has independently exercised the powers and has issued the order dated 1.7.2020 rather the same has been an offshoot of an the order dated 24.6.2020. The Zila Panchayat has directed for compliance of the orders issued by the State Government. It is argued that petitioner was only given charge of Pradhan and the same does not create any right to the petitioner/appellant. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of State of Haryana Vs. S.M. Sharma and others, (1993) AIR SC 2273 , wherein it is categorically held that holding of current charge does not create any right to an employee. It is submitted that there is no illegality in the order passed by the Writ Court, the same has rightly been passed and he has prayed for dismissal of the writ appeal. 6. Heard the learned counsel for the parties and perused the record. 7. From the perusal of the record, it is seen that there is no dispute with respect to the fact that after completion of the entire tenure of the Gram Panchayat, which came to an end in the month of March, 2020, but owing to some unavoidable circumstances the reconstitution of Gram Panchayat could not takes place. Therefore, taking aid of section 87 of the Act of 1993 the order has been issued for appointment of an Administrative Committee and a Pradhan. The relevant extract of section 38 of the Act of 1993 which deals with the filling of the vacancies which are as under: "Provided that if the office of the Sarpanch is reserved for a member of Scheduled Castes or Scheduled Tribes or Other Backward Classes or for a woman, the officiating Sarpanch shall be elected from amongst the members belonging to the same category; Provided further that where the office of Sarpanch is reserved for a woman belonging to Scheduled Castes or Scheduled Tribes or Other Backward Classes and there is no other woman belonging to that category who can be elected to officiate as Sarpanch, any other woman belonging to the other reserved categories may be elected to officiate as Sarpanch during the casual vacancy." 8. It is seen that the State Government has issued a subsequent order/clarification/instruction on 24.6.2020 to the effect that if the Gram Panchayat was reserved for a reserved category and if a person other than the reserved category has been appointed as a Pradhan then a modified list be called or sent for so that the further action can be taken into the matter. In pursuance to the aforesaid clarification/instruction issued by the State Government the Zila Panchayat, District Bhind has issued a letter dated 1.7.2020 taking into consideration of the order dated 24.6.2020, in pursuance to the same the modified list was called for appointment of Administrative Committee and Pradhan. The aforesaid aspects have been taken into consideration by the Writ Court by dealing with the controversy. It is not a case where the exercise of powers under section 87 (3) (b) (ii) of the Act of 1993 has been done owing to the fact that the dissolution of Panchayat has taken place. Rather it is a case where the actual term of the Panchayat has came to an end and thereafter the reconstitution of Gram Panchayat could not take place, therefore, the action has been initiated for appointment of a Administrative Committee vide order dated 31.4.2020. It is a case where the Gram Panchayat was for a reserved category therefore, taking aid of section 38 of the Act of 1993, the Pradhan has also to be appointed from the reserved category itself. Therefore, in pursuance to the subsequent clarification/instruction issued by the State Government dated 24.6.2020 the order impugned in the writ petition was rightly being passed. The arguments advanced by the appellant that after completion of expiry of the actual tenure of the Gram Panchayat, the members of the Gram Panchayat becomes functus officio and the fact that the Sarpanch has expired therefore, the Up-Sarpanch i.e. the petitioner/appellant was rightly being appointed as Pradhan, but the fact remains that the Sarpanch of the Gram Panchayat was from the reserved category, therefore, the Pradhan of the concerning Gram Panchayat has to be appointed in terms of section 38 of the Act of 1993. 9. Taking into consideration the overall facts and circumstances of the case, this Court does not find any illegality in the order passed by the Writ Court. The order impugned has rightly been passed. The same does not call for interference in the writ appeal. 10. 9. Taking into consideration the overall facts and circumstances of the case, this Court does not find any illegality in the order passed by the Writ Court. The order impugned has rightly been passed. The same does not call for interference in the writ appeal. 10. The writ appeal is accordingly misconceived and is hereby dismissed. No orders as to costs.