ORDER : MANINDER S. BHATTI, J. This petition has been filed while praying for the following reliefs: "(i) That, this Hon'ble Court pleased to issue a writ in the nature of certiorari by quashing the impugned order dated 25/08/2008 (Annexure P/23) of respondent No.2 being illegal, arbitrary, malafide and uncostitutional. (ii) That this Hon'ble Court be further pleased to issue a writ in the nature of mandamus, directing to respondents to handover the charge of the post of Panchayat Karmi to petitioner in view of order dated 04/01/2008 of the appellate committee and appointment of respondent No.6 be quashed. (iii) That, this Hon'ble Court also pleased to issue a writ in the nature of certiorari/orders of Gram Sabha/Gram Panchayat by in illegal and arbitrary and un-constitutional manner. (iv) Any other order/direction which this Hon'ble Court may deems fit and proper also be passed looking to the facts and circumstances of the case, also be passed in favour of the petitioner, in the interest of justice." 2. As per the facts which are detailed in the petition, the petitioner herein was working as the Panchayat Karmi (Secretary), Gram Panchayat, Devalpur. One Lallu Singh and Others, made a complaint against the petitioner on 10/04/2007. On the receipt of the said complaint, an enquiry was directed to be conducted and an enquiry report was submitted by BDO on 22/05/2007 (Annexure P/2) and the charges were not found to be proved. However, the office bearers of Gram Panchayat, were subsequently pressurized and thus, a resolution dated 18/6/2007 (Annexure P/3) was passed by which the petitioner was sought to be removed from the post of Panchayat Karmi (Secretary). The resolution was followed by another order dated 30/06/2007 (Annexure P/4) by which the petitioner was removed on the basis of a decision of resolution. Thereafter, the petitioner preferred an appeal in terms of section 7 (H) of Panchayat Raj Adhininyam, 1993 (hereinafter referred to as "Adhiniyam of 1993") (wrongly mentioned as Section 7(J) of the Adhiniyam of 1993), before the Appellate Committee which was consisted of President of Janpad Panchayat, member of Janpad Panchayat and Sub Divisional Officer. The Appellate Committee vide order dated 03/07/2007 (Annexure P/5), stayed the operation of resolution dated 18/6/2007 (Annexure P/3).
The Appellate Committee vide order dated 03/07/2007 (Annexure P/5), stayed the operation of resolution dated 18/6/2007 (Annexure P/3). As the Sub Divisional Officer, was not available when the order was passed by the Appellate Committee, therefore, the SDO was also approached separately by way of an appeal under Section 7 (H) of the Adhiniyam of 1993. The SDO also vide order dated 09/07/2007, stayed the operation of the resolution dated 18/06/2007. 3. After passing of an order dated 09/07/2007 (Annexure P/6), respondent No.5 made an attempt to appoint another person as Panchayat Karmi (Secretary) and issued the advertisement also. The said process was objected to by the petitioner. Even, respondent No.3 also restrained respondent No.4 to not to proceed with the process vide order dated 13/08/2007 (Annexure P/9). In the meantime, respondent No.5, preferred an appeal under Section 91 of the Adhiniyam of 1993, against the order dated 09/07/2007 passed by the SDO, Dindori. Respondent No.2, set aside the order dated 09/07/2007 passed by SDO, Dindori dated 28/09/2007. Against the order passed by respondent No.2, the petitioner preferred a petition before this Court vide W.P. No.14973 of 2007 and this Court disposed of the petition directing the Appellate Committee to take decision on the appeal in accordance with law. Thereafter, the Appellate Committee passed another interlocutory order which is contained in Annexure P/15 dated 05/11/2007 and again stayed the effect and operation of resolution dated 18/06/2007 which was passed by the Gram Panchayat. The Appellate Committee than passed final order in the appeal on 04/01/2008 (Annexure P/16) and while passing this order, the Appellate Committee set aside the order dated 30/06/2007 which was passed on the basis of the resolution dated 18/6/2007. Before passing of order dated 04/01/2008 by the Appellate Committee, Sarpanch of the Gram Panchayat passed another order dated 20/11/2007 (date is also mentioned as 20/10/2007 on the top right side of the order) and the petitioner was removed from the post of Panchayat Karmi. The said order dated 20.11.2007/20.10.2007 was assailed by the petitioner by filing a Revision in terms of Section 91 of the Adhiniyam of 1993, before Collector, Dindori. The Collector, Dindori vide order dated 26/12/2007 (Annexure P/18) granted an interim protection till 08/01/2008.
The said order dated 20.11.2007/20.10.2007 was assailed by the petitioner by filing a Revision in terms of Section 91 of the Adhiniyam of 1993, before Collector, Dindori. The Collector, Dindori vide order dated 26/12/2007 (Annexure P/18) granted an interim protection till 08/01/2008. As the initial order of petitioner's removal dated 30/06/2007 which was arising out of resolution dated 18/06/2007 was set aside by the Appellate Committee, the CEO, Janpad Panchayat, Samnapur vide communication dated 29/02/2008 (Annexure P/19) made a request to the Collector, Dindori to notify the petitioner as Secretary in terms of section 69 of the Madhya Pradesh Panchayat Raj Adhiniyam. Just before the letter dated 29/02/2008, the Sarpanch of the Gram Panchayat, passed another order dated 25/02/2008 (Annexure P/20) on the basis of resolution of Gram Panchayat dated 23/02/2008, and the petitioner was again removed from the post of Panchayat Karmi. Then again another order dated 30/06/2008 (Annexure P/21) was also issued by the Sarpanch, terminating the services of the petitioner and the said order was passed on the basis of resolution dated 28/06/2008. 4. The Collector who was approached against the order dated 20.11.2007/20.10.2007 by the present petitioner by way of revision in which the Collector had passed an interim order dated 26/12/2007 (Annexure P/18), he passed final order dated 25/08/2008 (Annexure P/23) and by the said order, revision preferred by the petitioner was dismissed. The Collector while passing the impugned order observed that even otherwise, subsequently, the petitioner was removed vide order dated 25/02/2008 and the said order was passed on the basis of resolution passed by the Gram Panchayat in its meeting dated 28/06/2008 which has not been assailed and accordingly, dismissed the revision. 5. Learned Senior Counsel for the petitioner contends that in the present case, the order impugned is nullity, which is evident from the perusal of the record. It is contended by the counsel that it is a case where the then Sarpanch was keeping grudge against the present petitioner and just in order to settle personal score, the then Sarpanch passed an order of removal of the petitioner on as many as 3 to 4 occasions. It is also contended by the Senior Counsel that when the initial order of removal was already in force, there was no occasion to pass any fresh order by the Sarpanch.
It is also contended by the Senior Counsel that when the initial order of removal was already in force, there was no occasion to pass any fresh order by the Sarpanch. It is further contended by the Senior Counsel that it is a case where, the Appellate Committee exercised its power as per section 7 (H) of the Adhiniyam of 1993. The Appellate Committee exercised the powers and set aside the order dated 30/06/2007 by which the petitioner was removed on the basis of resolution dated 18/06/2007. 6. It is contended by the Senior Counsel that subsequent order of removal of the petitioner, was merely an attempt to overreach the decision taken by the Appellate Committee dated 04/01/2008 (Annexure P/16). It is also contended by the Senior Counsel that the petitioner was constrained to approach the Collector by way of revision as the Sarpanch had passed a fresh order dated 20.11.2007/20.10.2007 otherwise, there was no occasion with the petitioner to approach any of the authorities. 7. It is further contended by the Senior Counsel that the initial order of petitioner's removal was stayed by the Appellate Committee and the said order was subjudice before the Appellate Committee. Thus, by no stretch of imagination, the Sarpanch could have ventured upon to pass a fresh order of termination. The Sarpanch in complete ignorance of the statutory provisions, had been passing the orders continuously. There exists as many as three orders on record which reflect that decision was taken to remove the present petitioner. There are three orders which have been passed by the Sarpanch after the initial order of removal which are contained in Annexure P/20 and Annexure P/21. 8. Senior Counsel while taking this Court to Annexure P/8 submits that there exist a circular dated 02/11/2006 issued by the department of Panchayat and Rural Development and as per the said circular, power to remove Panchayat Karmi was vested upon Sub Divisional Officer and hence, the Gram Panchayat could not have passed any resolution removing the petitioner. It is also contended by the Senior Counsel that an order passed by quasi-judicial authority was being sought to be overreached by the Sarpanch in the present case, hence, the order deserves to be set aside. 9.
It is also contended by the Senior Counsel that an order passed by quasi-judicial authority was being sought to be overreached by the Sarpanch in the present case, hence, the order deserves to be set aside. 9. Per contra, counsel for the respondent/State submits that the present petition deserves to be dismissed as the petitioner in the present case has failed to assail the order of removal dated 25/02/2008 (Annexure P/20) and as the said order has not been assailed by the petitioner, the same has attained finality already and the Collector while dealing with the revision of the petitioner, has dealt with the aforesaid aspect of the matter. Accordingly concluded that as the order dated 25/02/2008 passed by the Sarpanch (Annexure P/20) on the basis of resolution of Gram Panchayat dated 23/02/2008, since was not assailed by the petitioner, thus the petitioner was not entitled for any relief and accordingly rejected the revision prefer by the petitioner. 10. Counsel for the state submits that it is a case where the petitioner's initial removal was questioned by the petitioner by filing an appeal before the Appellate Committee and in absence of quorum, Appellate Committee, yet passed an interlocutory order in favour of the petitioner. Thus, the said order was nullity and this aspect was rightly taken note of by this Court while dealing with the petition which was filed by the petitioner vide WP No.14973 of 2007. Counsel further contends that the petitioner was guilty of suppression of facts as when the services of the petitioner were dispensed with vide order that dated 20.11.2007/20.10.2007, the petitioner was required to bring the said aspect to the notice of Appellate Committee which had fixed the date for final hearing of the appeal on 04/01/2008. Counsel contends that the Appellate Committee passed the final order on 04/01/2008, but it is evident that the Appellate Committee was not informed that an order dated 20.11.2007/20.10.2007 was already passed. 11. It is also contended by the counsel that the memorandum of petition reflects that it is not the pleading of the petitioner that he was not aware of order dated 20.11.2007/20.10.2007 (Annexure P/17) on the date of decision on the petitioner's appeal dated 04/01/2008, it is thus contended by the counsel that in view of the law laid down by the Full Bench of this court in Chandrapal Yadav Vs.
State of Madhya Pradesh reported in ILR (2016) MP 2425, this petition is liable to be dismissed. The petitioner is precluded from assailing the subsequent order of termination. In the present petition, the petitioner also has not prayed for quashment of subsequent order of termination dated 25/02/2008. 12. No other point is pressed or argued by the parties. 13. Heard rival submissions of the parties are perused the record. 14. In the present case the petitioner is assailing the order of Collector dated 25/08/2008 (Annexure P/23). Apart from the aforesaid, the prayer is also made to set aside the appointment order of private respondent-Gyan Singh/respondent No.6. As per the return of respondent No.6, he was appointed as Panchayat Karmi by resolution dated 13/10/2007 passed by Gram Panchayat Devalpur and an order under Section 69 of the Adhiniyam of 1993 was also issued, by which respondent No.6 was notified as Panchayat Secretary which is contained in Annexure R-6(3). 15. A perusal of the record reflect that according to petitioner, his initial order of removal from the post of Panchayat Karmi, was challenged by him by filing an appeal before the Appellate Committee. The Appellate Committee passed an interlocutory order 03/07/2007 (Annexure P/5) and stayed the effect and operation of resolution dated 18/06/2007. The petitioner herein also approached the Sub Divisional Officer, against the same resolution and the Sub Divisional Officer also in a separate appeal, passed another interlocutory order dated 09/07/2007 (Annexure P/6). The interlocutory order passed by Sub Divisional Officer, was set aside by the Collector, Dindori vide order dated 28/09/2007 (Annexure P/13). The petitioner's contention is that despite the interlocutory order of Sub Divisional Officer dated 09/07/2007 being set aside, the order of Appellate Committee which was passed by remaining two members dated 03/07/2007 (Annexure P/5), was in force. To appreciate this contention of the petitioner, if the order passed by this Court dated 01/11/2007 in WP No.14973/2007, (Annexure P/14) is perused, it would reveal that this Court observed as follows: "An order was passed in such an appeal vide Annx.P/5 by merely two of the constituting members. The third member, namely, Sub Divisional Officer has passed an order separately as revealed in Annx.P/6. This procedure is not contemplated in law. The committee as an appellate authority shall consider the matter and pass an appropriate order.
The third member, namely, Sub Divisional Officer has passed an order separately as revealed in Annx.P/6. This procedure is not contemplated in law. The committee as an appellate authority shall consider the matter and pass an appropriate order. Accordingly, the petition is disposed of with the directions that the appellate committee under the M.P. Gram Sabha (Appeal) Rules, 2001 shall entertain the appeal and take the decision in accordance with law. Needless to say that the orders contained in Annx.P/5, P/6 and P/11 shall stand superseded by the order liable to be passed by the appellate committee. It is further made clear that in case, if, the petitioner submits an application for stay, the same shall be considered in an expeditious manner. With the aforesaid directions, the petition accordingly, stands disposed of." 16. A perusal of the aforesaid order passed by this Court reflects that this Court already dealt with the interlocutory order which was passed by two members of the committee and the Court specifically observed that the said procedure was not contemplated in law. This Court even extended liberty to the petitioner to submit a fresh application for stay, therefore, firstly the interlocutory order dated 03/07/2007 (Annexure P/7) which was passed by two members of the committee, was an order without jurisdiction as the quorum on the said date was not complete. As the SDO who was also one of the member of the committee, was not present at the said date, hence, the interlocutory order could not have been passed by only two members, inasmuch as, the Appellate Committee consists of as many as three members as per Rule 3 of Madhya Pradesh Gram Sabha (Nirdhan Vyaktiyon Ko Udharon Ki Manzuri) Niyam. 2001, which is reproduced as under" 17. It is also important to take note that the petitioner is placing heavy reliance on the final order passed by the Appellate Committee (Annexure P/16). A perusal of the order dated 04/01/2008 reflects that the same was a non speaking order and while passing the said order, the Appellate Committee did not take into consideration the order dated 20.11.2007/20.10.2007 (Annexure P/17). The said order was communicated to the Collector, CEO, Janpad Panchayt, SDO and petitioner also. It is not the case of the petitioner that the order dated 20.11.2007/20.10.2007 (Annexure P/17) was received by the petitioner subsequently.
The said order was communicated to the Collector, CEO, Janpad Panchayt, SDO and petitioner also. It is not the case of the petitioner that the order dated 20.11.2007/20.10.2007 (Annexure P/17) was received by the petitioner subsequently. Hence, when the appeal came up for hearing before the Appellate Committee, on 04/01/2008, order dated 20.11.2007/20.10.2007 was already in existence and was in the knowledge of the present petitioner. It is further evident form perusal of the interlocutory order dated 26/12/2007 (Annexure P/18), that the petitioner himself challenge the order dated 20.11.2007/20.10.2007 by filing a revision before the Collector and the revision came up for hearing on 26/12/2007. On 26/12/2007, the Collector passed an interlocutory order and stayed the effect and operation of order dated 20.11.2007/20.10.2007. Therefore, it was incumbent upon the present petitioner to bring the entire facts to the notice of the Appellate Committee that during pendency of the appeal, further development had taken place and a fresh order dated 20.11.2007/20.10.2007 (Annexure P/17) was passed which was assailed by the petitioner in revision and the revisional authority also had passed an interlocutory order dated 26/12/2007. 18. It is evident from perusal of the final order of Appellate Committee that subsequent developments were not brought to the notice of the Appellate Committee. It is further evident that the CEO, Samnapur sent a letter to Collector dated 29/02/2008 to notify the petitioner as Secretary which was issued in view of the interlocutory order dated 08/01/2008, passed by the Collector in pending revision, order sheets of which are contained in Annexure P/18. However, there is no other document on record to demonstrate that the petitioner was notified as Panchayat Secretary. The Sarpanch, then proceeded to pass an order dated 25/02/2008 (Annexure P/20) by which the petitioner was removed again from the post of Panchayat Karmi and as per the said order dated 25/02/2008, the resolution was passed by the Gram Panchayat on 23/02/2008. This resolution dated 23/02/2008 has not been filed by the petitioner, however, the operative paragraph of order dated 25/02/2008 (Annexure P/20) reflects that the petitioner herein was issued a show cause notice dated 05/02/2008, however, the petitioner did not give any reply to the notice. Thereafter, Gram Panchayat passed a resolution on 23/02/2008 and as per the resolution, it was decided to remove the petitioner.
Thereafter, Gram Panchayat passed a resolution on 23/02/2008 and as per the resolution, it was decided to remove the petitioner. Apparently, in pursuance of the said resolution, the Sarpanch passed an order dated 25/02/2008 and this order dated 25/02/2008 has not been assailed by the petitioner in the present petition. There is no prayer as regards quashment of this order dated 25/02/2008 in the entire prayer clause. The Collector while passing the impugned order dated 25/08/2008 (Annexure P/23), observed in unequivocal terms as under: 19. A perusal of the aforesaid paragraph of the order of the Collector clearly reveal that a resolution was passed by Gram Panchayat to remove the petitioner dated 23/02/2008, pursuant to which Sarpanch issued an order dated 25/02/2008 (Annexure P/20). However, the petitioner did not assail the resolution dated 23/02/2008 by filling any appeal or revision and thus, Collector, concluded that the order of removal of the petitioner based on resolution dated 23/02/2008, had attained finality and accordingly proceeded to dismiss the revision preferred by the petitioner which was filed against the order dated 20.11.2007/20.11.2007. 20. The interlocutory order passed by the Collector in revision vide case No.08-(A-89) A-15/2007-08 dated 26/12/2007 (Annexure P/18) and the final order in the same case, has been passed by the Collector dated 25/08/2008 (Annexure P/23). Hence, it can be safely concluded that the petitioner approached the Collector against the order dated 20.10.2007/20.11.2007, which was passed by the Sarpanch, Gram Panchayat on the basis of resolution dated 10/06/2007 which was passed by Gram Panchayat Devalpur, proposing removal of the petitioner. The petitioner never challenged order dated 25/02/2008, and order dated 30/06/2008 (Annexure P/21), therefore, in absence of any challenge to order dated 25/02/2008 which was passed after decision taken by the Appellate Committee dated 04/01/2008, this petition is liable to be and accordingly dismissed. 21. Resultantly, the petition stands dismissed.