2009 Supreme(Raj) 2400
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Raghuvendra S.Rathore, J.
Govinda - Appellant
Versus
State of Rajasthan & Ors. - Respondent
S.B. Civil Writ Petition No. 7906 of 2009.
Decided On : 27-10-2009
Advocates:
For the Petitioner:Mr. Hukum Chand Saini, Advocate.
For the Respondents:Mr. Jinesh Jain, Government Counsel and Mr. Anurag Sharma, Advocate.
In matters of local bodies, the fundamental principle of democracy that the majority prevails is applicable and should be followed when making appointments to vacant posts.
Headnote:
PANCHAYATI RAJ - VACANT POST OF SARPANCH - APPOINTMENT - ELECTION - MAJORITY SUPPORT - DEMOCRATIC PRINCIPLES - RAJASTHAN PANCHAYATI RAJ ACT, 1994 - SECTIONS 25, 26, 42.
Fact of the Case:
The petitioner, a panch belonging to the Scheduled Caste category, challenged the appointment of respondent No. 6 as Sarpanch of Gram Panchayat, Kasba Shahar, arguing that he had the support of the majority of the panchas and should have been appointed instead.
Finding of the Court:
The Court found that the appointment of respondent No. 6 was illegal and arbitrary as it was not made in accordance with the provisions of the Rajasthan Panchayati Raj Act, 1994. The Court also found that the respondent State had failed to take steps to hold new elections to fill the vacant post of the deceased Sarpanch, which was a violation of the Act.
Issues: 1. Whether the appointment of respondent No. 6 as Sarpanch was legal and valid. 2. Whether the respondent State had failed to take steps to hold new elections to fill the vacant post of the deceased Sarpanch.
Ratio Decidendi: The Court held that the appointment of respondent No. 6 was illegal and arbitrary as it was not made in accordance with the provisions of the Rajasthan Panchayati Raj Act, 1994. The Court also found that the respondent State had failed to take steps to hold new elections to fill the vacant post of the deceased Sarpanch, which was a violation of the Act. The Court further held that in matters of local bodies, the fundamental principle of democracy that the majority prevails is applicable and should have been followed by the District Collector when there were three persons available from the reserve class to hand over the charge of Sarpanch.
Final Decision: The Court quashed and set aside the order appointing respondent No. 6 as Sarpanch and directed the respondent State to appoint a new Sarpanch from among the reserve category of panchas of the Gram Panchayat to which the deceased Sarpanch belonged, within a period of 15 days. The Court also directed the respondent State to call a meeting of the Gram Panchayat to ascertain which of the panchas belonging to the reserve class of the deceased Sarpanch held the majority and to appoint that panch as the new Sarpanch for the remaining term.
JUDGMENT
1. - The petitioner, by this writ petition, has sought to challenge the order dated 02.07.2009 (Annexure-3). Therefore, it has been prayed that the said order may be quashed and set aside. Further, it is prayed that the respondents may be directed to appoint the petitioner on the post of Sarpanch of Gram Panchayat, Kasba Shahar, District Karauli.
2. The relevant facts giving rise to the present writ petition are that the elections of Gram Panchayat, Kasba Shahar, were held in the year 2005. The petitioner who belongs to the Scheduled Caste category was elected as a panch from Ward No.1. The post of Sarpanch was also reserved for the Scheduled Caste category. Shri Ramdev Sambhariya was elected as Sarpanch of the said Gram Panchayat. Thereafter, Sarpanch Ramdev Sambhariya expired on 26.05.2009 as a result of which, the post of Sarpanch of the Gram Panchayat had become vacant.The District Collector, Karauli had called all the panchas of the panchayat belonging to scheduled castes category. In this regard, notice was issued by Zila Parishad Karauli on 23.06.2009 and by Panchayat Samiti,Nadoti on 24.06.2009. In pursuance thereof, the Gram Panchayat notice on 25.06.2009. The District Collector, Karauli had then appointed Shri Jagdish, respondent No.` 6 as Sarpanch of the Gram Panchayat, Kastba Shahar vide order dated 02.07.2009. It is the said order which has been assailed by the petitioner in the present writ petition.
3. The case of the petitioner is that the appointment of respondent No. 6 as Sarpanch on 02.07.2009 by District Collector, Karauli respondent No. 2 is in gross violation of the provisions of the Rajasthan Panchayati Raj Act, 1994 and Rules made thereunder. The post of Sarpanch of Gram Panchayat, Kasba Shahar was reserved for Scheduled Caste and accordingly late Shri Ramdev Sambhariya had been so elected. In the Gram Panchayat, there are three panchas of the said reserve category. The petitioner belongs to the Bairwa caste and as such he also falls within the category of Scheduled Caste. Therefore, he was so elected as a Panch from Ward No. 1 of Gram Panchayat Kasba Shahar, in the year 2005. According to the petitioner, when the post of Sarpanch of Gram Panchayat had become vacant, the same was to be filled up amongst the panchas who belonged to the same reserved category. The petitioner has the support of the majority of the members/panchas, as there were nine of them in his favour. Therefore, the petitioner has stated that a member belonging to reserved class and enjoying the majority in the Gram Panchayat should have been appointed on the post of Sarpanch which had fallen vacant on account of the death of Sarpanch elected in the year 2005. Therefore, it has been submitted by the counsel for the petitioner that the action of the respondents was in total violation of the provisions of Rajasthan Panchayati Raj Act, 1994 and the Rules made thereunder in appointing respondent No. 6 as Sarpanch of Gram Panchayat, Kasba Shahar. Further, he has submitted that the impugned order is not legally sustainable in as much as it is against the spirit of the Panchayati Raj Act and the Rules. It has also been submitted that by passing of the impugned order, the respondents had ignored and disregarded the wishes of the majority of the panchas of the Gram Panchayat.
4. The respondent State has contested the writ petition by way of filing reply to it. The case of the respondent is that respondent No. 6 has been appointed by District Collector, Karauli, respondent No. 2 as per the law and there has been no violation of any provision of the Rajasthan Panchayati Raj Act or the Rules framed thereunder. Further, it is the case of the respondents that normally a vacant post in a Panchayati Raj institution is to be filled up by election but it is not necessary to be so filled up if the term of such vacancy would expire within six months from the date of its occurrence. In the instant case, the elected Sarpanch Shri Ramdev Sambhariya had
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