Back
2008 (II) OLR — 530
P. K. TRIPATHY AND A. K. PARICHHA, JJ.
Fakirmohan Das and others...Petitioners
Versus
Government of Orissa and others...Opp. Parties
In W.P.(C) No. 12062 of 2004
Pabitra Mohan Sethy and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Pabitra Mohan Roul and others...Petitioners
Versus
Govt. of Orissa and others...Opp. Parties
Khageswar Pradhan...Petitioner
Versus
Govt. of Orissa and others...Opp. Parties
Soma Munda and another...Petitioners
Versus
State of Orissa and others...Opp. Parties
Tumba Minz and another...Petitioners
Versus
State of Orissa and others...Opp. Parties
Sukumari Oram and another...Petitioners
Versus
State of Orissa and others...Opp. Parties
Karmee Oram and another...Petitioners
Versus
State of Orissa and others...Opp. Parties
Dwarikanath Senapati and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Natabar Sahoo and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Basanta Kumar Panda and others...Petitioners
Versus
Govt. of Orissa and others...Opp. Parties
Ratnakar Behera and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Bijaya Kumar Swain and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Narayan Acharya and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Saurendra Kumar Swain and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Sadashiba Pradhan and others...Petitioners
Versus
Government of Orissa and others...Opp. Parties
Bhaskar Chandra Sahoo and others ...Petitioners
Versus
Government of Orissa and others...Opp. Parties
Lokanath Pati and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Krushna Chandra Rout and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Ashit Kumar Das and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Sheshadev Behera and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Manoranjan Pakal and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Maguni Mandal and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
B.Rama Murty and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Raghabananda Pradhan...Petitioner
Versus
State of Orissa and others...Opp. Parties
Dharanidhar Pujari and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Bharat Chandra Panda
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Gajapati Zilla Grama Panchayat
Sampadak Sangha and another...Petitioners
Versus
State of Orissa and others...Opp. Parties
Chinari Jawaharlal Choudhury
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Rajani Kanta Jena and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Joseph Bada Roita
and another...Petitioners
Versus
State of Orissa and others...Opp. Parties
Ajanta Kumar Kalta and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Gajendra Kumar Samantra
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Aditya Narayan Rout
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Amarsingh Mundary
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Kabiraj Behera and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Shyam Sundar Biswal
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Khirod Bihari Mallick
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Ananta Kumar Maharana
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Orissa Gram Panchayat
Karmachari Sangha...Petitioner
Versus
State of Orissa and others...Opp. Parties
Madhsudan Das and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Siva Prasad Sarangi
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Gobinda Chandra Mohanty
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Santosh Kumar Dalei
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Sri Praful Chandra Nayak
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Prafulla Chandra Mishra
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Ramesh Chandra Panigrahi
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Prafulla Kumar Panda
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Sankarsan Behera and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Purna Chandra Jena
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Jagatram Chhatria and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Madhi Bagarty and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Manoj Kumar Mahakud
and another...Petitioners
Versus
State of Orissa and others...Opp. Parties
Shyam Sundar Bhoi and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Bholanath Giri and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Gunju Hans and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Rabi Chandra Jhankar
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Sudhir Kumar Mund...Petitioner
Versus
State of Orissa and others...Opp. Parties
Harish Chandra Patra
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Biswanath Swain and another...Petitioners
Versus
State of Orissa and others...Opp. Parties
Siva Prasad Sarangi and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Sudarshan Satpathy
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Kirtan Pradhan and another...Petitioners
Versus
Government of Orissa
and others...Opp. Parties
Pabitra Mohan Sethy
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Debabrata Das and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Bidyadhar Pattnaik and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Narendra Kumar Sahoo
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Sribatsh Kalia and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Prafulla Chandra Das and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Bibekananda Mohanty
and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Goutam Naik and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Daso Toppo and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Taranison Pradhan and others...Petitioners
Versus
State of Orissa and others...Opp. Parties
Karamu Chandra Nayak and another...Petitioner
Versus
State of Orissa and others...Opp. Parties
W. P. (C) Nos. 12191, 12062, 12071, 12259, 12438, 12439, 12440, 12441, 12545, 12551, 12587, 12598, 12614, 12649, 12659, 12674, 12687, 12688, 12582, 12868, 12884, 12935, 12977, 12987, 12989, 12998, 13099, 13103, 13104, 13219, 13226, 13246, 13271, 13273, 13278, 13292, 13299, 13302, 13341, 13342, 13381, 13393, 13426, 13441, 13489, 13622, 13657, 13658, 13661, 13800, 13801, 13830, 13842, 13843, 13844, 13845, 13876, 13933, 14022, 14484, 14614, 14719, 14788, 12514, 14006, 14267, 13424, 14042 of 2004 and W.P. (C) Nos. 61, 126, 175, 282, 327, 513, 5877, 14747 of 2005.
Decided on 22nd July, 2008.
The State Government has the authori¬ty to make provision for functioning of the Grama Panchayats and prescribing the categories of servants to function under it. Therefore, creating the post of Executive Officer as per amended provisions in Sub-sections 1 and 2 of Section 122 are found to be within the jurisdiction and competency of the State Legislature. Therefore, this Court in exercise of jurisdiction under Article 226 of the Constitution of India has no jurisdiction to interfere with that enacted provision to the above extent. The Secretaries of the Grama Panchayats or even the Sarpanchs of Panchayats in the State cannot question the authority of the State and the State Legislature in that respect when the aforesaid act and wisdom of the State does not run contrary to the mandate of the Constitution of India and does not interfere with the principle of self government.
When the matter stands thus, the criticism by the petitioners on Sub-section (3) of Section 122 still remains to be considered. Answer of the State Government on the aforesaid point is flimsy. According to the counter affidavit of the opposite parties -State, the workload in the Panchayats has increased and still likely to increase many fold in view of different develop¬mental schemes introduced by both the Central Government and the State Government and huge flow of money for development and therefore, additional staffs are necessary to cope with that pressure of work and to properly monitor and utilize of the funds allocated and allotted. This part of the logic of the State also run consistent with the provision of law and the competency of the State to create post and to assign/entrust work on the new employees of the Panchayats. But the further logic of the State that the V.A.Ws. and V.L.Ws. remaining in the duel charge are to remain under the specific control and supervision of Director, Collectors and District Panchayat Officers, as stated above is unacceptable, inasmuch as, if the Executive Officers of the Panchayats, who have been bestowed with all the responsibilities relating to maintenance of records, registers and cash be kept under the control of the bureaucrats relating to their service conditions and function, then the Panchayats cannot function within independence and that is how that would interfere with the constitutional mandate of self-government. For the reasons as¬signed by the State, if V.A.Ws and V.L.Ws are to function as Executive Officers, then their duties and responsibilities with respect to the duties in the Panchayat and their services should be within the control of the Grama Panchayats, or else the Grama Panchayats may suffer for any indiscipline or refusal or negli¬gence to carry out the lawful order of the Sarpanch or Panchayat, as the case may be. Apart from that their may be clash of priori¬ty to carry out specific orders issued by the two authorities (Panchayat and State). (Paras - 13 to 19)
2. CONSTITUTION OF INDIA, 1950 - Art. 226 - Authority of the Court to examine a law to find out whether it is within the parameters of the Constitution and the law established by it ? - Court has jurisdiction to consider that contention - High Court in exercise of the jurisdiction under the Article has no unfettered power to sit as the appellate authority or the conscience keeper of the legislators so as to dictate or advise to frame the law in any particular manner - If the Court finds that the law in question ultra vires the Constitution, then it should declare so in that process explain the reasons on the deficiency in the law.
(Para - 13)
3. STATUTE - Act and Rules - In the event of any conflict between the Act and the Rules made thereunder, the former will prevail - Rule framed in any statute should be in conformity with the Act and not in deviation, derogation and contradiction of the provision in the Act. (Para - 18)
JUDGMENT
P.K. TRIPATHY, J. — All the aforesaid cases were heard analogously on consent of the parties and disposed of by this common judgment.
2. Secretaries working under different Gram Panchayats in the State of Orissa and in some cases Sarpanches of the Grama Panchayats together with the Secretaries have filed the writ petitions challenging amendment of Sections 122 and 123 of the Orissa Grama Panchayat Act, 1964 (in short, ‘the Act’) and the orders dated 18.10.2004 and the consequential order thereof dated 01.11.2004 passed respectively by the Government in Panchayati Raj Department and the concerned Panchayat Officers/the Block Development Officers.
3. In nut shell, the Secretaries and also the Sarpanches of some of the Grama Panchayats have questioned the authority of the Government in making amendment of Sections 122 of 123 of the Act contrary to the spirit of self governance proclaimed by the Constitution in Article 243 G by curtailing independence of the Grama Panchayats and to get it controlled through deputed staffs i.e. Village Level Workers and Village Agricultural Workers (in short, “V.L.Ws and V.A.Ws”). Bone of contention of the petition¬ers is that by the impugned amendment of the statute not only the position of the Secretaries as the employee under the Grama Panchayat is minimized but also by induction of V.L.Ws. and V.A.Ws, the Grama Panchayats are kept under direct control of the Executive, which is controlled by the ruling political parties. Accordingly, petitioners pray to declare the aforesaid amendment to Sections 122 and 123 of the Act as ultra vires. Their further contention is that when the Rules under the pre-amended Act relating to the power and jurisdiction of the Secretaries has remained unaffected, the order dated 18.10.2004, issued by the Panchayatiraj Department and the consequential action taken by the Block Development Officers for handing over the charge of the relevant records by the Secretaries to the V.L.Ws. and V.A.Ws. is illegal and liable to be quashed.
4. In a common counter affidavit filed on behalf of the opposite parties-State, it has been stated that the impugned amendment was made by the State Government in the larger public interest and the same is within the parameters and ambit of Article 243 G of the Constitution and the provision in Section 44-(iii) of the Act. It is stated that 73rd amendment of the Constitution bestows the Panchayats with various new functions and considerable amounts of funds are being allotted to implement different schemes which are sponsored or organized and a Panchay¬at may not be able to handle such situation with the aid and assistance of one Secretary in each Gram Panchayat. Thus, in¬crease in dimension functions i.e. the workload and the flow of funds for timely proper utilization necessitated the State Gov¬ernment to decide to post additional hands i.e. the V.L.Ws. and V.A.Ws. so as to avoid any additional financial burdens of the State and at the same time to cater to the need of the people at the grass root level of the democracy. It is further stated that provision of Section 152 of the Act, provision in the Constitu¬tion of India and the other provisions in the Act and Rules enable the State Government to take such measures and there is nothing unconstitutional about it. Accordingly, it defends the impugned amendment.
5. The V.L.Ws. and V.A.Ws. who are contesting the dispute through their Association reiterated the stand of the State Government and argued for sustenance of the same.
6. Since the documents under challenge in all the writ petitions are common, the Annexures filed in W.P.(C) No.12191 of 2004 are noted for the sake of convenience. Annexure-2 is the Amended Act, which was notified and published in The Orissa Gazette on 12th October 2004. Annexure-1 is the Circular Order dated 18.10.2004 issued by the Commissioner-cum-Secretary to Government in Panchayati Raj Department imparting instructions relating to posting of V.L.Ws. and V.A
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
