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2019 Supreme(Bom) 1233
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
Bhagwat S/o Digambarrao Uphad – Petitioner
Versus
State of Maharashtra, through Secretary, Rural Development Department – Respondent
Writ Petition No. 8807 of 2019
Decided On : 31-07-2019
Advocate Appeared:
For the Petitioner: Mr. S.S. Tope.
For the Respondents: Mr. S.R. Yadav, Mr. V.D. Salunke, Mr. V.A. Bagal.
Headnote:
ZILLA PARISHAD AND PANCHAYAT SAMITIS ACT - SECTION 16(1)(H) - DISQUALIFICATION - OFFICE OF PROFIT - SECRETARY OF WATERSHED COMMITTEE - HONORARIUM - NOT AN OFFICE OF PROFIT - PETITION ALLOWED.
Fact of the Case:
Petitioner, an elected member of the Zilla Parishad, was disqualified under Section 16(1)(h) of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961, for holding an office of profit as Secretary of a Watershed Committee. The Committee was formed under a circular issued by the Rural Development and Water Conservation Department of the State, and the petitioner was nominated by the Gram Sabha and appointed by the Project Officer. The petitioner received an honorarium of Rs. 3,000/- per month for his services.
Finding of the Court:
The Court held that the petitioner was not holding an office of profit under the Government and therefore was not disqualified under Section 16(1)(h) of the Act. The Court found that the Committee was formed by the Gram Sabha and not by the Government, and that the petitioner was not appointed by the Government or any of its agencies. The Court also found that the honorarium paid to the petitioner was not a salary or wages, but was a token amount to cover his out-of-pocket expenses. The Court further held that the petitioner did not have any security of employment, service tenure, or retirement age, and that his engagement could be terminated at any time by the Project Officer.
Issues: Whether the petitioner was holding an office of profit under the Government.
Ratio Decidendi: The Court held that the petitioner was not holding an office of profit under the Government because: * The Committee was formed by the Gram Sabha and not by the Government. * The petitioner was not appointed by the Government or any of its agencies. * The honorarium paid to the petitioner was not a salary or wages, but was a token amount to cover his out-of-pocket expenses. * The petitioner did not have any security of employment, service tenure, or retirement age, and his engagement could be terminated at any time by the Project Officer.
Final Decision: The Court allowed the petition and quashed the order of disqualification. The petitioner was reinstated as a Member of the Zilla Parishad with immediate effect.
JUDGMENT :
RAVINDRA V. GHUGE, J.
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. I have heard the submissions of the learned Advocates on 19.07.2019, 22.07.2019, 25.07.2019 and today.
3. The petitioner is aggrieved by the order dated 09.07.2019 delivered by the Additional Divisional Commissioner, Aurangabad, respondent No. 2 herein thereby allowing an application filed by respondent No. 6, original complainant by which he had sought disqualification of the petitioner u/s 16(1)(h) of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961. The said authority has concluded that the petitioner has incurred a disqualification since he has occupied an office of profit while he was elected as a Councilor of the Zilla Parishad.
4. The submissions of the petitioner can be summarized as under:
(a) He was recommended by the entire Village Gram Sabha on 26.01.2013 to be nominated as a “Secretary” of the Panlot Samiti, which can be termed in English as a Watershed Management Committee, under a circular dated 18.02.2010.
(b) The said Committee accepted the recommendation and the petitioner was engaged as a Secretary with an honorarium/stipend of Rs. 3,000/- per month.
(c) He resigned as the Member of the Village Panchayat on 24.02.2017. His resignation was accepted and he ceased to be the member of the Village Panchayat w.e.f. March 2013.
(d) On 21.03.2017, the petitioner defeated respondent No. 6/original complainant in the elections to the Zilla Parishad and was elected as a Member of the said local authority.
(e) In January 2019, respondent No. 6 lodged a complaint contending that the petitioner has incurred a disqualification u/s 16(1)(h) for having occupied an office of profit with the Watershed Committee.
(f) The authority below has concluded that since the petitioner was being paid Rs. 3,000/- the said amount was by way of a salary and the petitioner had incurred the disqualification.
(g) The Rural Development and Water Conservation Department of the State issued a circular on 27.09.2012 altering the formation of the Watershed Committee under the Integrated Watershed Management Programme.
(h) The new formation of the Watershed Committee is as under.
(i) The Secretary of the Committee would be such a person who has been recommended by the Gram Sabha. The Chair Person of the Committee would be the Sarpanch of the Gram Panchayat and his tenure would be coterminous with the tenure of the Sarpanch. In short, the day he ceases to be a Sarpanch, he would cease to be the Chair Person of the Committee.
(j) The Rural Development and Water Conservation Department issued a new GR dated 18.04.2013 observing that the Committee already constituted prior to 2012, would continue to function in view of the interim orders passed by this Court on 05.12.2012 in WP No. 8683/2012 and the order dated 13.02.2013 passed on CA No. 16118/2013.
(k) The same Department once again issued a GR dated 19.08.2014 by which the tenure of the Watershed Management Scheme was restricted to 5 years. Such a Watershed Committee under the scheme would discuss/consult the Gram Panchayat and if the Gram Panchayat decides to have a Gram Vikas Committee, they would be at liberty to prepare/ constitute such a Committee.
(l) Annexure 'A' to the 2014 GR then reconstitutes the Watershed Committee as under.
(m) The Secretary of the Committee would be the person who would be nominated by the Gram Sabha.
(n) A meeting was held in November 2006 in which the National Rainfall Area Authority (NRAA) has participated.
(o) The Honorarium paid to the petitioner cannot be termed as a salary.
(p) The Central Government contributes 90% of the expenditure under D.O.L.R.
(q) The State of Maharashtra contributes 10% under the State Level Vasundhara Watershed Development Agency.
(r) The Village Panchayat or the Zilla Parishad has no role to play except recommending the members of the Watershed Committee.
(s) Any person who is 12th standard qualified from the particular vill
