2011 Supreme(Guj) 140

2011 (2) GCD 1102 (Guj)
Hon’ble Mr. Justice M.R. Shah
Ramilaben Mukeshbhai Desai
Versus
State of Gujarat Through Additional Development & Ors.
Special Civil Application No. 1327 of 2011—Decided on 09/03/2011

Point in Issue :
Whether declaration of petitioner as disqualified to continue as member and consequently President of Panchayat is valid and sustainable.

Headnote:Head Note :

       Gujarat Panchayat Act, 1993 — Sections 30, 30(1)(g), 31, 32(1)(a) and 32(2) — Gujarat Secondary Education Act, 1972 — Sections 2 and 35 — Gujarat Municipalities Act, 1963 — Sections 50 and 271 — Disqualification as member and consequently President of Panchayat — Declaration of ground of being employee of Municipal High School — Sustainability — Finding of — Government Middle High School Kheralu of which petitioner is the employee was earlier run administered and managed by State Government — It is by resolution dated 22.08.1952 of the Education Department of State entire school came to be transferred to Kheralu Municipality together with building — Contention of behalf of petitioner that the said school was transferred to Kheralu Municipality only for the purpose of management by Municipality is not acceptable and not true in view of the consideration of resolution dated 22.08.1952 as a whole — Court opened that the petitioner who is serving as a Assistant Teacher in the said School, the management of which is with Kheralu Municipality is rightly disqualified as member of Panchayat as per Section 30(1)(g) of the Act by the impugned order by respondents — Merely because appointment of petitioner was made by the Selection Committee constituted under Section 35 of the Act of 1972 the Committee can not be held her disappointing authority — So far question raised about availability of efficacious remedy under Section 31 of the Act of 1993 by challenging the election of petitioner Court observed that it is a larger question which is kept open — In view of this Court held that no illegality has been committed by both authorities beyond in declaring petitioner’s disqualification for membership as well as President of Panchayat.

       Held :

       At the outset, it is required to be noted that the Government Middle High School, Kheralu was earlier run, administered, managed by the erstwhile State of Bombay and by resolution dated 22.08.1952 of the Education Department of the Government of Bombay, the entire school i.e. Government Middle High School, Kheralu came to be transferred to the Kheralu Municipality, Kheralu together with the building subject to the conditions mentioned in the said resolution. It is the contention on behalf of the petitioner that the said school was transferred to Kheralu Municipality only for the purpose of management by the Kheralu Municipality. However, considering the entire resolution dated 22.08.1952 as a whole, it appears that by the aforesaid resolution, Government of Bombay directed that the Government Middle High School, Kheralu together with its building should be transferred to the Kheralu Municipality, Kheralu. Thus, entire Government Middle High School, Kheralu came to be transferred to the new management i.e. Kheralu Municipality, Kheralu. Therefore, Kheralu Municipality can be said to be the management of the said school since 1952. Admittedly, petitioner is serving as an Assistant Teacher in the said Municipal High School, Kheralu and the management of the said school is Kheralu Municipality, Kheralu. [Para 8.0]

       In the present case, as stated herein above, the Government Middle School, Kheralu which was earlier managed by the erstwhile State of Bombay has been transferred with staff and the building etc. pursuant to the aforesaid Government Resolution of Government of Bombay dated 22.08.1952. Therefore, for all the purposes, Kheralu Municipality can be said to be the employer of the petitioner/entire staff of the said school. Therefore, for all practical purposes, even under the provisions of the Gujarat Secondary Education Act, Kheralu Municipality can be said to be the management/employer of an Assistant Teacher of the said school. Merely because the service conditions of the petitioner is governed by the provisions of Gujarat Secondary Education Act and Regulations, it cannot be said that the petitioner is not the servant of the school which is run, administered and managed by the Kheralu Municipality. Considering Section 30(1)(j) of the Act, 1993, a person who is servant of Government or servant of any local authority is disqualified to be and/or continued to be the member of the Panchayat. Considering the aforesaid facts and circumstances, it cannot be said that petitioner being an Assistant Teacher in the Municipal High School, Kheralu, the management of which is Kheralu Municipality, petitioner is not the servant of the said Municipality/Nagarpalika (local authority) incurring the disqualification under Section 30(1)(j) of the Act, 1993. [Para 8.1]

       It is to be noted that the question with respect to disqualification of a person to be a member of the Panchayat and/or to continue to be a member of the Panchayat is required to be considered under Section 32 of the Act, 1993 and therefore, on an application submitted by Respondent No. 3 before the competent authority, when the competent authority has held and declared the petitioner to be disabled from continuing to be a member and subsequently declared the post held by the petitioner as vacant, no illegality has been committed by the respondents/competent authority. The question whether such a dispute of disqualification of a member to be or continued to be a member of the Panchayat for incurring the disqualification under Section 30 of the Act, 1993, by way of election petition under Section 31 of the Act is a larger question which is kept open. [Para 9.3]

       Under the circumstances, no illegality has been committed by the concerned respondents and authorities in declaring the petitioner is disabled from continuing on the post of member of a Taluka Panchayat, Kheralu and consequently the President of the Taluka Panchayat, Kheralu and the post held by the petitioner is rightly declared as vacant. [Para 9.3]

       Law Laid Down :

       The term ‘manage’ means to ‘control’, ‘to act to administer’, ‘to conduct’ or ‘direct affairs’.