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2021 DIGILAW 221 (GAU)

Alsuma Begum v. Mustt. Renuja Khatun Patowary

2021-03-08

M.R.PATHAK, SUDHANSHU DHULIA

body2021
ORDER : SUDHANSHU DHULIA, J. 1. Heard Mr. S.C. Biswas, learned counsel for the appellant as well as Mr. B.K. Sarma, learned counsel for respondent No. 1; Mr. M. Nath, learned standing counsel, Panchayat and Rural Development Department, representing respondent Nos. 2 and 4 as well as Mr. T.C. Chutia, learned additional senior Government advocate, Assam, representing respondent No. 2. 2. This writ appeal is filed by the appellant against an order dated 1.12.2020, passed by the learned Single Judge in IA (Civil) 1496/2020 dismissing the said interlocutory application which was filed by the appellant for vacating the interim order dated 31.8.2020, passed in WP(C) 3291/2020, by which an order dated 10.8.2020 passed by the Deputy Commissioner, Hojai, giving charge of the President of the Doboka Gaon Panchayat to the respondent No. 4 (i.e., writ appellant) had been stayed until further orders. 3. The brief facts of the case are that the writ petitioner (present respondent No. 1) was elected as the President of Doboka Gaon Panchayat in the district of Hojai. The writ appellant before this court was the Vice-President of the said Gaon Panchayat. The President (i.e., writ petitioner) was removed from office by a resolution adopted on 8.7.2020 by the Members of the Gaon Panchayat in a No Confidence Motion moved against him. After removal the President from office, the Vice-President of the Gaon Panchayat (i.e., writ appellant) was given the charge of President by an order dated 10.8.2020 passed by the Deputy Commissioner, Hojai. This order of the Deputy Commissioner was challenged by the ousted President (present respondent No. 1) before the learned Single Judge in WP(C) 3291/2020. The case of the writ petitioner before the learned Single Judge was that as per sub-section (2)(c) of the amended section 111 of the Assam Panchayat Act, 2018 (‘Panchayat Act’), which was amended by insertion of sub-section (2), one of the essential qualifications for holding the post of President of a Gaon Panchayat is that one must have passed HSLC or its equivalent examination and since the respondent No. 4 (i.e., writ appellant) had read only up to Class VI she does not possess the necessary qualification for the post of President of the Gaon Panchayat. Sub-section (2) of the amended section 111 of the Panchayat Act reads as under: “3. Amendment of section 111. Sub-section (2) of the amended section 111 of the Panchayat Act reads as under: “3. Amendment of section 111. - (2) No person shall be elected or co-opted and remain as President, Vice-President or Member of Zilla Parishad, Anchalik Panchayat and Gaon Panchayat,- (a) who has more than two living children from a single or multiple partners: Provided that this provision shall not be applicable in respect of those persons, who have more than two children prior to the date of commencement of this Act; (b) who has not passed Class VI examination from an Educational Institution, for the post of Gaon Panchayat Member: Provided that in case of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes (OBC) and More Other Backward Classes (MOBC), lacking of minimum educational qualification shall not be a bar for contesting election or to be elected for the post of Gaon Panchayat Member; (c) who has not passed the HSLC or equivalent examination under any Council or Boarci recognised by the State or the Central Government, as the case may be, for the post of Gaon Panchayat President, Anchalik Panchayat Member: Provided that in case of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes (OBC) and More Other Backward Classes (MOBC), the minimum educational qualification shall be Class VIII examination passed from an Educational Institution; (d) who has not passed the HSLC or equivalent examination under any Council or Board recognised by the State or the Central Government, as the case may be, for the post of Zilla Pari shad Member: Provided that in case of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes (OBC) and More Other Backward Classes (MOBC), the minimum educational qualification shall be HSLC or equivalent examination passed under any Board or Council recognised by the State or the Central Government, as the case may be; (e) who does not have a functional sanitary toilet in his/her residence.” 4. A bare perusal of the aforesaid amended provision shows that the President of a Gaon Panchayat should be a person who must have passed the HSLC or equivalent examination and the qualification for the post of Member of a Gaon Panchayat is that the person must have passed Class VI examination. A bare perusal of the aforesaid amended provision shows that the President of a Gaon Panchayat should be a person who must have passed the HSLC or equivalent examination and the qualification for the post of Member of a Gaon Panchayat is that the person must have passed Class VI examination. It is an admitted position that whereas the President of a Gaon Panchayat is directly elected by the voters, the Vice-President is elected by the Members of the Gaon Panchayat from amongst the Members of the Gaon Panchayat. In other words, whereas the writ petitioner was directly elected as the President of the said Gaon Panchayat, the writ appellant was indirectly elected as the Vice-President. It may also be noted here that no separate qualifications have been prescribed under the Panchayat Act for the post of Vice-President though there are separate qualifications prescribed for the post of Member of a Gaon Panchayat. A bare reading of the aforesaid provision shows that a Member of a Gaon Panchayat should be one, who, inter alia, has passed Class VI examination. 5. In the present case, consequent to the No Confidence Motion successfully carried out against the sitting Gaon Panchayat President, the President (writ petitioner) was removed and, by an order dated 10.8.2020, the concerned Deputy Commissioner gave the charge of President to the Vice-President, as provided under the law. This order of the Deputy Commissioner was under challenge in the writ petition on the ground which we have already mentioned above. By the order dated 31.8.2020 passed in the writ petition, interim relief was granted to the writ petitioner and the aforesaid order of the Deputy Commissioner dated 31.8.2020 was stayed until further orders. The Vice-President (i.e., writ appellant) filed a Stay Vacation Application [I.A. (Civil) 1496/2020] stating that there was no requirement under the law for a Member of Gaon Panchayat to be HSLC passed. He was initially elected as a Gaon Panchayat Member only for which he has the requisite qualification, which is Class VI pass and, by virtue of being a Gaon Panchayat Member, he was elected as the Vice- President of the Gaon Panchayat by the Members of the Gaon Panchayat. He was initially elected as a Gaon Panchayat Member only for which he has the requisite qualification, which is Class VI pass and, by virtue of being a Gaon Panchayat Member, he was elected as the Vice- President of the Gaon Panchayat by the Members of the Gaon Panchayat. As he was the elected Vice-President, he has been given the charge of the President of the Gaon Panchayat in a special contingency and, therefore, the qualification attached to the post of President cannot be applied for him. This argument, however, did not find favour with the learned Single Judge and the Stay Vacation Application was dismissed by the order dated 1.12.2020. The operative portion of the order reads as follows: “From a plain reading of the amended provision of section 111 of the Act of 1994, I am of the prima facie opinion that not to speak of holding a regular post of President/Vice-President/Member of Gaon Panchayat, no person can even be co-opted or allowed to remain in those offices unless he or she has passed the HSLC or equivalent examination under a recognized Board. Exception, if any, in the form of relaxation is available only in case of candidates belonging to SC, ST, OBC, MOBC categories which, however, would not have any bearing in the present case. Situated thus, it is apparent that the applicant cannot hold the office of President of the Gaon Panchayat. As such, I do not find any good ground to vacate the interim order 31.8.2020 passed in this case. This IA stands dismissed accordingly.” 6. We have seen the scheme of the Panchayat Act with regard to the functioning of the President and Vice-President, their qualifications as well as their removal. The amended provision of section 111 of the Panchayat Act, which was amended by insertion of sub-section (2), has already been referred above. The said provision makes it mandatory for a person to be elected as President of a Gaon Panchayat that he must have passed HSLC or equivalent examination. The requisite qualification for a Member of Gaon Panchayat is, however, only Class VI. The said provision makes it mandatory for a person to be elected as President of a Gaon Panchayat that he must have passed HSLC or equivalent examination. The requisite qualification for a Member of Gaon Panchayat is, however, only Class VI. Although the provision of sub-section (2)(c) of section 111 are very generally worded:“No person shall be elected or co-opted and remain as President, Vice- President or Member of Zilla Panshad, Anchalik Panchayat and Gaon Panchayat who has not passed the HSLC or equivalent examination under any Council or Board recognised by the State or the Central Government, as the case may be, for the post of Gaon Panchayat President, Anchalik Panchayat Member”. This provision, however, is applicable only at a time when such a person seeks election to the post of President of a Gaon Panchayat. What we are dealing are not evaluation of his qualification for the elections but we are dealing with a special contingency where the elected President has been removed and it is the Vice-President who has now to discharge the functions of the President. In such a special contingency, it is not necessary for the Vice-President to have the qualification required for a President of a Gaon Panchayat as long as he has the qualifications which are required for the Vice-President of a Gaon Panchayat, i.e., the qualification required for a Member of a Gaon Panchayat, which is Class VI. There is absolutely no doubt that the writ appellant has the Qualification required to be elected as a Member of the Gaon Panchayat Sand, as already noted above, the writ appellant, by virtue of his being an elected Member of the Gaon Panchayat, was elected as the Vice-President of the Panchayat and has been given the charge of President in a special contingency, which is removal of the elected President. Therefore, insisting upon the Vice-President to have the qualification required for the post of President in such a special contingency would not be a correct reading of the provisions of law. The office of the President of a Gaon Panchayat cannot remain vacant. The order of the Panchayati Raj Officer (Deputy Commissioner) dated 10.8.2020 (Annexure-6 to the writ petition), by which the Vice-President (i.e., present appellant) has been given the charge of President shows that the appellant has been entrusted to look after the works of the President only temporarily and in public interest. The order of the Panchayati Raj Officer (Deputy Commissioner) dated 10.8.2020 (Annexure-6 to the writ petition), by which the Vice-President (i.e., present appellant) has been given the charge of President shows that the appellant has been entrusted to look after the works of the President only temporarily and in public interest. 7. Section 13(2)(b) of the Panchayat Act provides that during the absence of the President of a Gaon Panchayat, the Vice-President shall exercise all the powers, perform all the functions and discharge all the duties of the President. Section 13(2)(b) reads as under: “13. Powers, function and duties of Presidentand Vice-President of Gaon Panchayat.-(2)(a) Exercise such of the powers, perform such of the functions and discharge such of the duties of President as the President may, from time-to-time subject to rule made in this behalf by the Government, delegate to him order in writing: Provided that the President may at any time withdraw all or any of the powers, functions and duties so delegated to the Vice-President. (b) During the absence of the President, exercise all the powers, perform all the functions and discharge all the duties of the President with the approval of the President of the Gaon Panchayat. (c) Exercise such other powers, performs such other functions and discharge such other duties as the Gaon Panchayat may, by general or special resolution, direct or as the Government may, by rules made in this behalf prescribe. (d) exercise all the powers, perform all the functions and discharge all the duties of the President as provided under sub-section (1) of section 13, if the President be removed, and or dies or resigns, till the office of the President is filled up in the manner as provided under sub-section (1)(b) of section 6. 8. In view of the above discussions, we set aside the order of the learned Single Judge dated 31.8.2020, passed in WP(C) No. 3291/2020. We also issue a mandamus directing the Panchayati Raj Officer (Deputy Commissioner, Hojai) to forthwith give charge of the President to the writ appellant so that the writ appellant can perform the functions and discharge the duties of the President. At the same time, we direct the concerned authorities to start the procedure for election of a new President of the Gaon Panchayat, in accordance with law, as expeditiously as possible. 9. Writ appeal stands allowed.