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2024 DIGILAW 631 (MP)

Samirunnisha v. State Of Madhya Pradesh

2024-09-21

VIVEK JAIN

body2024
ORDER : These two petitions have been filed by two rival contenders to the post of Panchayat Karmi being aggrieved by the order dated 03.10.2018 passed by the Minister of State for Rural Development, Government of Madhya Pradesh, thereby cancelling the earlier process for appointment and directing fresh proceedings be carried out for filling up the post. Apart from challenging the aforesaid order, both rival candidates seek their own appointment to the post. 2. During pendency of the petition, respondent No.8 in WP 27643/2018 who is petitioner in WP 26046/2018 continued to work and expired in the intervening period i.e. on 13.2.2024. After his death, his Legal representatives have been substituted. Further development took place that his widow has been granted compassionate appointment on 13.6.2024 and the said order has also been put to challenge in WP 27643/2018 by way of amendment as Annexure P-22. Another candidate, namely Usha Bai, who was at Sr. No. 4 in the panel, has filed intervention application IA No. 13346/2024 in WP No. 26046/2018 asserting her own rights to appointment. 3. Due to similitude of facts and controversy involved, both these petitions are being decided by this common order. For the sake of convenience, reference to facts and documents is taken from WP No. 27643/2018. 4. It is the sole contention of the learned counsel for the petitioner that the resolution Annexure P-1 dated 14.9.2007 whereby the respondent No.8 was appointed is not passed on basis of merits of the rival candidates and that the said resolution having been passed on basis of majority of votes in favour of respondent No.8 who was otherwise at merit position No.9 in the panel is illegal in terms of the judgement of Division Bench of this Court in the case of Suresh Vs. Chief Executive Officer, reported in 2012 (1) MPHT 74 . 5. Per contra, it has been the case of respondent No.8 that even in the absence of majority of votes, all other candidates were disqualified inasmuch there is one or the other disqualification of each of the candidates. The number of some were wrongfully recorded by the Panchayat in the resolution and many others were close relatives of the office bearers of the Panchayat, and were therefore, disqualified. Thus, it is the case of respondent No.8 that he was the highest person in merit who was otherwise qualified to hold the post. 6. The number of some were wrongfully recorded by the Panchayat in the resolution and many others were close relatives of the office bearers of the Panchayat, and were therefore, disqualified. Thus, it is the case of respondent No.8 that he was the highest person in merit who was otherwise qualified to hold the post. 6. The necessary facts for the purpose of disposal of the present petition are that the Gram Panchayat initiated a process for appointment of Panchayat Karmi in the Panchayat in the year 2007. As per the Panchayat Karmi Scheme of the State Government dated 12.9.1995, it was contemplated to appoint Panchayat Karmi in the Panchayat for the purpose of conferral of Secretarial charge in terms of Section 69 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam 1993 (for short, Adhiniyam 1993). Now undisputedly, the a regular cadre for Panchayat Secretary has been constituted in the year 2011 as per the Madhya Pradesh Panchayat Service (Gram Panchayat Secretary. Recruitment and Conditions of Service) Rules, 2011 and the previously appointed Panchayat Karmis have been absorbed in the regular cadre of Panchayat Secretary. 7. The dispute started with this resolution dated 14.09.2007 (Annexure P-1) wherein the Panchayat resolved to appoint the respondent No.8 as Panchayat Secretary despite being at Sr. No. 9 in the order of merit. The appointment letter Annexure P-2 was issued on the same date and he was conferred the Secretarial charge by the Collector vide order annexure P-3 dated 29.12.2007. 8. Another candidate namely Kalyan Singh, who was at Sr. No. 3 in the merit panel, filed an appeal before the Sub-Divisional Officer (“SDO” for short) against such appointment of respondent No.8 and that appeal came to be decided vide order dated 18.12.2009 (Annexure P-4), holding the appointment of respondent No.8 to be illegal as it was de-hors the merit. The SDO directed to re-operate the panel as per merit. The said order was challenged by respondent No.8 before the Collector and the order of the SDO was held to be valid and proper vide Annexure P-11 dated 29.11.2010. 9. The petitioner had instituted separate proceedings under Section 85 of the Adhiniyam 1993 for suspending the resolution dated 14.9.2007 and in those proceedings, an order annexure P-9 dated 29.4.2011 was passed by the SDO, holding that the panel be operated afresh as directed by the SDO and the Collector. The matter reached the Addl. 9. The petitioner had instituted separate proceedings under Section 85 of the Adhiniyam 1993 for suspending the resolution dated 14.9.2007 and in those proceedings, an order annexure P-9 dated 29.4.2011 was passed by the SDO, holding that the panel be operated afresh as directed by the SDO and the Collector. The matter reached the Addl. Commissioner and the said authority passed order Annexure P-10 and the order holding the appointment of respondent No.8 illegal was affirmed, but that part of action where punitive action was threatened against the Panchayat Office bearers was set aside granting liberty to take such action after hearing those office bearers. 10. When Gram Panchayat did not operate the panel, the Collector initiated fresh recruitment process for the post and issued process afresh exercising powers under section 86 (2), vide Annexure P-13. This time the petitioner was appointed vide order dated 12.12.2011. The order of the Addl. Commissioner annexure P-10 was under challenge before the Minister in Revision at the instance of respondent No.8 and the Revision was decided on 04.6.2012 vide annexure P-16. The Minister upheld the appointment of the respondent No.8 to be valid. 11. The matter then was agitated before this Court in WP No. 13537/2012 and the said petition was allowed on the ground that the petitioner was not heard by the Minister. Hence, the matter was remanded to the Minister vide order Annexure P-18 dated 10.11.2017. 12. This time after remand, the Minister has set aside the entire process and directed to issue fresh advertisement and carry out the process afresh by treating the post to have fallen vacant due to long pendency of disputes. This order has been challenged by both the parties by filing separate petitions. 13. The respondent No.8 continued to work in terms of the earlier order passed by the Minister and in intervening period he has expired and his wife has been given compassionate appointment. 14. The issue of a resolution having been passed by majority of votes is no longer res-integra and it has been held to be invalid by a Division Bench of this Court in Suresh Vs. Chief Executive Officer, reported in ILR 2012 MP 698 : 2012 (1) MPHT 74 , in the following terms :- "7. Shri Pankaj Soni, learned counsel appearing for the 4th respondent on the other hand supported the order passed by the learned Single Judge. Chief Executive Officer, reported in ILR 2012 MP 698 : 2012 (1) MPHT 74 , in the following terms :- "7. Shri Pankaj Soni, learned counsel appearing for the 4th respondent on the other hand supported the order passed by the learned Single Judge. He contended that in view of the law laid down by this Court in the case of Prajapal Singh v. State of M.P. (supra) and also in the case of Mahesh son of Mohan Jadhav Vs. State of M.P. , reported in 2010 (3) MPLJ 470 in which it has been held that even as per the circular 27 -1-2006 the appointments, cannot be made by ignoring the merits, the learned Single Judge has rightly remanded the matter to the Gram Panchayat for making the appointment by observing merit. He also argued that at this stage when the objection of Limitation was not raised before the authorities below and when the matter has been decided on merits, it would be wholly unjustified to direct the SDO to decide the question as to whether the appeal of the 4th respondent was within limitation or not. He further argued that undisputedly the appointment of the appellant was made on the basis of majority of votes ignoring the merit, the objection of Limitation which was not raised before the authorities cannot now be allowed to be raised. In support of his contentions, he has drawn our attention to paragraph 8 of the order passed by this Court in the case of Mahesh son of Mohan Jadhav v. State of M.P. (supra) which reads as under:- “8. In the circumstances at this point of time having fought the matter before various Forums and having regard to the fact that the matter stood decided on merits also, the second respondent cannot be directed to go before the Sub-Divisional Officer for litigating the issue once again afresh. This is more so as even on merits, undisputedly the 2nd respondent secured more marks than the petitioner in the 10th standard examination of the system of 10+2 and as such was entitled to get appointment, in view of the law laid down by a Division Bench of this Court, Bench at Indore in the case of Devilal son of Bherulal Patidar v. State of M.P. vide Order dated 20-3-2009 passed in Writ Petition No. 5579 of 2008(s).” 9. So far as the appellant's contention that he could have been appointed as Panchayat Karmi on the basis of the majority of votes in view of the Circular dated 27-1-2006 which was prevailing at the time of making of his appointment is concerned, we find no merit in this submission. In the circular dated 27-1-2006 it was provided that the list of all the applications received by the Gram Panchayat for the said post was to be prepared by the Gram Panchayat on the basis of seniority and merit. It further provided that after preparation of such list, the eligible candidate, as per seniority of such list, was to be appointed. Therefore, in our considered view as per the Scheme of appointment of Panchayat Karmi the merit was required to have been observed even as per the Circular dated 27-1-2006 which was in vogue when the appellant was appointed. The contention of the learned Senior Counsel for the appellant that in making the appointments prior to the Circular dated 13-8-2007 there was no necessity of observing of merit is, therefore, wholly misconceived. We find that in the present case ignoring the merit the appointment was made by the Gram Panchayat only on the basis of majority of votes. In such circumstances the appellant's appointment which was made giving complete go bye to the merit could not have been sustained and the same has rightly been set aside by the learned Single Judge and the matter has rightly been remanded to the Gram Panchayat for passing fresh resolution on the basis of merit." 15. The appointment of the respondent No.8 based on majority of votes cannot be given stamp of approval. Faced with this, it was stated by learned counsel for the respondent No.8 that the relatives of other candidates higher in merit were office bearers of the Panchayat, and they even took part in the meeting while resolution dated 14.9.2007 was passed. Upon perusal of the resolution, it is seen that indeed the husband of the petitioner, namely Abid Ali, has participated in the meeting. Not only this, as noted by the collector in his order Annexure P-4, close relatives of various other candidates like Anoj, Kalyan and Usha were office bearers in the Panchayat at that time when the resolution was passed. 16. It was countered by the counsel for the petitioner that her husband had resigned. Not only this, as noted by the collector in his order Annexure P-4, close relatives of various other candidates like Anoj, Kalyan and Usha were office bearers in the Panchayat at that time when the resolution was passed. 16. It was countered by the counsel for the petitioner that her husband had resigned. However, from a perusal of the document RJ-1 relied by the petitioner and filed with the rejoinder, it is evident that Abid Ali tendered his resignation on 21.9.2007 and it was accepted on 15.10.2007. Therefore, at the time when process was underway, Abid Ali was indeed a Panch and he participated in the meeting dated 14.9.2007. Section 69 of the Adhiniyam 1993 provides as under :- “69. Appointment of Secretary and Chief Executive Officer. – 1. The State Government or the prescribed authority may appoint a Secretary for a Gram Panchayat or group of two or more Gram Panchayats : Provided that the person holding the charge of a Secretary of Gram Panchayat immediately before the commencement of this Act shall continue to function as such till a Secretary is appointed in accordance with this section. [Provided further that a person shall not hold charge of a Secretary of Gram Panchayat, if such a person happens to be relative of any office-bearer of the concerned Gram Panchayat. Explanation. - For the purpose of this sub-section the expression "relative" shall mean father, mother, brother, sister, husband, wife, son, daughter, father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law.” 17. The learned counsel for the petitioner then stated that as per Section 69 of the Adhiniyam 1993, the bar is on holding charge as Secretary and not for appointment as Panchayat Karmi. The said contention, though is attractive in first flush, but is found to be misconceived. The Panchayat Karmi policy was framed for the purpose of appointment of employees on whom Secretarial charge could be conferred, and for no other purpose. This is not a case where after appointment as Panchayat Karmi, his relative got elected in Panchayat as Office bearer. It is a case where even at the time of application, the relative was aa office bearer. Once a person was disqualified to hold charge as Secretary even on the date of advertisement, there was no question to appoint him as Panchayat Karmi. This issue has been dealt with by a Bench of this Court in Keshav Singh Vs. It is a case where even at the time of application, the relative was aa office bearer. Once a person was disqualified to hold charge as Secretary even on the date of advertisement, there was no question to appoint him as Panchayat Karmi. This issue has been dealt with by a Bench of this Court in Keshav Singh Vs. State of M.P., reported in 2020 (4) MPLJ 180 as under :- 13. The appointment to the post of Panchayat Karmi is made under Section 70 read with Section 69 of the Adhiniyam, 1993, however, Panchayat Karmi Yojna issued under Section 70 of the Adhiniyam, 1993 has not been notified in the Gazette and it is not a rule. The scheme merely makes reference to Section 70 and Section 69 of the Adhiniyam, 1993, therefore, where the scheme has been framed under Section 70 (1) read with Section 69 (1) of the Adhiniyam, 1993, then it cannot be read in isolation of the provisions of Section 69 (1) of the Adhiniyam, 1993. It is well established principle of law that an executive instruction cannot override the statutory provisions and thus, absence of a provision that the relative of the office-bearer cannot participate in the recruitment process in the Panchayat Karmi Yojna does not mean that any relative of Panchayat Karmi can apply for his appointment to the post of Panchayat Karmi. Furthermore, the powers of Panchayat Secretary are conferred under Section 69 (1) of the Adhiniyam, 1993. Thus, the appointment made under this Section has to be in consonance with the provisions of Section 69 (1) of the Adhiniyam, 1993. Therefore, the contention of the petitioner cannot be accepted that even if the petitioner was de-notified under Section 69 (1) of the Adhiniyam, 1993, still he was entitled to hold the post of Panchayat Karmi and to receive the monthly honorarium of Rs.500/-. Under these circumstances, this Court is of the considered opinion that since the petitioner was the brother of the Sarpanch of the Gram Panchayat, therefore, he was not entitled to be appointed on the post of Panchayat Karmi/Panchayat Secretary and, therefore, the notification issued by the Collector under Section 69 (1) of the Adhiniyam, 1993, thereby conferring the powers of Panchayat Secretary on the petitioner was contrary to the mandatory provisions of second proviso to Section 69 (1) of the Adhiniyam, 1993. Under these circumstances, this Court is of the considered opinion that the Additional Commissioner, Gwalior Division, Gwalior did not commit any mistake in setting aside the order dated 31/7/2007 passed by the Collector. 18. Therefore, the petitioner also seems to be clearly disqualified to hold the post of Panchayat Karmi and her application as on date of application was clearly incompetent as her husband was a elected Panch. Similar seems to be the case of other candidates at Sr. No. 1 (Anoj), Sr. No.3 (Kalyan) and Sr. No. 4 (Usha), as already noted above and the real contest remains between the petitioner and the respondent No.8. None other candidate has ever filed any appeal or objection in the matter of selection of the respondent No.5. 19. The impugned order of the Minister Annexure P-20 in setting aside the entire process cannot be given stamp of approval, because no general illegality of such grave nature so as to vitiate the entire process has not been brought by either of the parties or by the State. Mere pendency of the dispute since long cannot be a ground to set aside the entire process. Therefore, the petitioner is clearly disqualified on anvil of second proviso to section 69 of the Adhiniyam 1993 and candidates at Sr. No. 1, 3 & 4 have already been declared disqualified on one ground or the other as held by the authorities below and they have not decided to come up in writ petition before this Court. Other candidates at Sr. No. 5 to 8 have never come in picture at all and have never raised any objection in the matter. 20. Therefore, the appointment of the original respondent No.8 (now deceased) and consequent compassionate appointment of his wife are upheld in view of the peculiar factual situation of this case and all orders to the contrary are set aside. Resultantly, WP 27643/2018 is dismissed and WP 26046/2018 is allowed.